McFadden v. Henderson

• Citation: 29 So. 640,128 Ala. 221
• Parties: MCFADDEN ET AL. v. HENDERSON ET AL.
• Decision Date: 22 January 1901
• Court: Supreme Court of Alabama

29 So. 640

128 Ala. 221

MCFADDEN ET AL. v. HENDERSON ET AL.

Supreme Court of Alabama

January 22, 1901

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Action by George H. McFadden & Bro. against G. E. and W. E Henderson. Judgment for defendants. Plaintiffs appeal. Reversed.

The defendants pleaded the general issue and several special pleas. To these special pleas demurrers were interposed which were sustained by the court. The cause was tried upon issue joined upon the plea of the general issue.

On the trial of the case the evidence disclosed the following facts The contract for the breach of which plaintiffs sue in this case, was made with defendants through John Gatling, the agent of plaintiffs. On November 15, 1899, defendants wrote said Gatling to come to Enterprise, Ala., and look at a lot of cotton they had there, amounting to fifteen or sixteen hundred bales, and that they would give Gatling preference when they sold the same. This was the beginning of the communication between said Gatling, as plaintiffs' agent and the defendants, which finally led to the formation of the contract sued on in this case. The contract was effected by correspondence in the shape of telegrams and letters. On November 20, 1899, defendants telegraphed said Gatling as follows: "Make us best offer you can our lot." In reply said Gatling telegraphed as follows: "Offer six seven-eights f. o. b., round, nothing below middling, subject to reweights. Answer immediately." On the same day defendants telegraphed said Gatling as follows: "How long will you give us on your offer?" In reply Gatling telegraphed: "Will give half hour on limit." Defendants replied by telegram: "Squeeze your limit one-sixteenth. Will try to trade with you. Lot is at least one-sixteenth better that you are figuring on." Gatling replied: "Can't increase offer. Answer as soon as possible. Am expecting limit to be cut." Defendants replied: "Fifteen hundred bales cotton is yours. Come at once. We want the money out of it and the insurance stopped." Gatling replied: "Order cotton out at once unless it rains. Man will be down as soon as possible. Confirm sale by letter." All of this telegraphic correspondence took place on the 20th of November, 1899. On November 21, 1899, Gatling telegraphed defendants: "As soon as you get cotton lined out ready for weighing and classing wire George Beale here. I go to Brantley this evening." On said November 21st, defendants wired Beale: "We are ready to deliver cotton." Beale replied: "Will come down as soon as our weigher gets there to weigh cotton. Reweighing must not begin until he arrives." On November 21, 1899, defendants wrote Beale, who was the plaintiffs' agent at Elba and had taken the place of Gatling, as follows: "We expect you to-morrow morning without fail to commence receiving cotton. We are ready to deliver. We have good beams and government standard seal weights to test scales and man to weigh it." On November 22d, defendants wrote said Beale as follows: "We were disappointed that you did not show up here on arrival of train this morning. It costs big money to carry 1,500 bales of cotton, and we want to deliver it and get our money out of it. Will certainly expect you to-morrow morning to go to work on it. Dond't fail to come." On the 24th of November following, Beale telegraphed defendants as follows: "Sorry to disappoint you. Impossible to come. Have not finished shipping here yet. Communicate headquarters Montgomery, perhaps they will send man." 10:20 same day a. m. defendants wired said Beale: "You have no cotton with us." And at 10:50 a. m. of same day Beale wired defendants: "Yours we expect to begin receiving cotton to-morrow sure." And on the same day Beale wired defendants as follows: "Since wiring you this morning have wire from Montgomery that weigher and crew will be down on to-night's train." November 24, 1899, plaintiffs through their agents, were at Enterprise and demanded of defendants that 1,500 bales of cotton purchased, or agreed to be purchased as aforesaid, and defendants refused to deliver the same, claiming plaintiffs had violated the contract. They also demanded said cotton on the 25th of November and defendants refused to deliver the same, and on that date sold the cotton to another party and afterwards delivered it in accordance with said sale. Defendants had possession of said cotton on the 24th and 25th days of November, when plaintiffs demanded its delivery to them. It is further shown that the average weight of a bale of cotton in the vicinity of Enterprise in November, 1899, was about 500 pounds; and that this particular lot of cotton, 1,500 bales, averaged 487 1/3 pounds per bale.

The testimony for the plaintiffs further tended to show that on November 21st and 22d it rained at Enterprise, Ala., and in the vicinity thereof, and that the 1,500 bales of cotton was not in shape for delivery either on the 21st, 22d, 23d, 24th or 25th day of November, 1899. Most of it was out of doors and set on its end, but did not have space sufficient between each bale so that it could be sampled. It is further shown that a bale had to be in a condition to be turned from one side to the other for sampling and weighing. The testimony for the plaintiffs further showed that cotton of the grade and quality agreed to be bought by the plaintiffs from the defendants was worth, free on board cars at Enterprises, Ala., on November 24, 1899, from 7 1/8 to 7 3/16 cents per pound. Plaintiffs offered to prove that as soon as they ascertained that defendants refused to deliver the cotton and claimed the right to rescind the contract, they went into the market and repurchased 1,500 bales of cotton as expeditiously and cheaply as it could be bought, and that the additional cost of such repurchase over the contract price with defendants was two dollars per bale; but the court refused to allow this proof, and plaintiffs excepted. Plaintiffs further offered to show that as soon as this contract was made with defendants, they resold the same, and that they replaced it after the refusal to deliver at an additional cost of two dollars per bale; but the court refused to allow this proof and plaintiffs excepted. The plaintiffs further offered to show that with all possible expedition it would have taken at least five days for the defendants to have delivered, on the one hand, and the plaintiffs to have received, this cotton; but the court refused to allow this proof, and the plaintiffs duly excepted. Plaintiffs offered evidence showing that on November 24th and 25th they were ready, able and willing to receive and pay for the cotton in accordance with the terms of the contract. The testimony for the plaintiffs further tended to show that there were about 500 bales of cotton at Enterprise at this time other than the cotton involved in this suit. Plaintiffs further offered to show the general custom in receiving cotton in the daytime, and not at night, but the court refused to allow it and plaintiffs excepted.

The testimony for the defendants tended to show that at 1 p. m. on November 21st, the cotton was in shape for delivery, and that they were ready, able and willing to deliver it at 1 p. m. on the 21st; that no one came to receive the cotton on the 21st, 22d, or 23d of November; that they did not receive any message from plaintiffs on the 22d or 23d, but that they still held the cotton on the 22d and 23d ready and willing to deliver it.

The defendants were allowed to prove, over the objection of plaintiffs, that the market price of cotton at Enterprise, Ala., on November 24, 1899, at 10:20 o'clock a. m. was 6 7/8 cents per pound. The evidence further tended to show that it did not rain at Enterprise prior to 1 o'clock in the afternoon of that day.

On cross-examination, defendants' evidence further tended to show that they could not positively say that all of the cotton was turned out ready to be weighed on the 21st; that it was ordered out, and that a part of it was seen turned out; and that the warehouse had reported that all of the cotton was ready to be delivered when they wired Beale. On cross-examination plaintiffs asked J. E. Henderson when on the stand as a witness for the defendants, who had testified that cotton was worth 6 7/8 cents per pound at Enterprise at 10:20 a. m. on the 24th of November, if he did not offer to sell said lot of cotton to Inman & Co. on that day for 7 1/8 cents and demand that price for the same. the court refused to allow this question to be answered, and the plaintiffs excepted. It was further shown that the cotton was not classed nor weighed up to November 24th.

Upon the introduction of all the evidence, the plaintiffs requested the court to give to the jury the following written charge: "If the jury believe the evidence, they will find for the plaintiffs." The court refused to give this charge, and the plaintiffs duly excepted. At the request of the defendants, the court gave the general affirmative charge in their behalf, and to the giving of this charge the plaintiffs duly excepted.

Harmon, Dent & Weil, for appellants.

Foster, Samford & Carroll, for appellees.

HARALSON J.

There is no dispute but that the contract having been made by the agent of plaintiffs, for their benefit, they may sue on it though their names were not disclosed in the transaction. Bell v. Reynolds, 78 Ala. 511; City of Huntsville v. Gaslight Co., 70 Ala. 190.

When the terms and conditions of a contract are certain, its construction is a question for the court and not for the jury. Barnhill v. Howard, 104 Ala. 412, 16 So. 1; Foley v. Felrath, 98 Ala. 176, 13 So. 485.

In construing contracts, courts lean to that construction which will make them unconditional rather than conditional, unless it...