McGowin Lumber & Export Co. v. R.J. & B.F. Camp Lumber Co.

• Decision Date: 22 April 1915
• Docket Number: 863
• Citation: 68 So. 263,192 Ala. 35
• Parties: McGOWIN LUMBER & EXPORT CO. v. R.J. & B.F. CAMP LUMBER CO.
• Court: Alabama Supreme Court

68 So. 263

192 Ala. 35

McGOWIN LUMBER & EXPORT CO. v. R.J. & B.F. CAMP LUMBER CO.

No. 863

Supreme Court of Alabama

April 22, 1915

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by the R.J. & B.F. Camp Lumber Company against the McGowin Lumber & Export Company. From a judgment for plaintiff defendant appeals. Transferred from the Court of Appeals of Alabama under section 6, Act April 18, 1911 (Gen.Acts 1911 p. 449). Reversed and remanded.

Stevens McCorvey & Dean, of Mobile, for appellant.

Gregory L. & H.T. Smith and W.G. Caffey, all of Mobile, for appellee.

MAYFIELD J.

Appellee sued appellant in assumpsit. The complaint on which the case was tried consisted of four counts, numbered from 2 to 5 inclusive. Each count claimed damages for the breach of what is claimed to be a contract of sale of lumber.

The only contract attempted to be set up in any one of the counts is a letter written by appellant to appellee, which, omitting the description of the lumber claimed to have been sold or contracted to be sold, is in words and figures as follows:

"Mobile, Ala., March 1st, 1910.

"Dear Sirs: Please enter our order for [here follow quantities and specifications of the lumber desired]. Price: $15.50. To be shipped sixty (60) days. Terms: Cash less 2% 10 days. Prices are f.o.b.f.a.s. vessel Carabelle.

"See that this is put on B/L.

"Mail invoice and bill of lading (in duplicate) to us as soon as shipped.

"Yours very truly,

"McGowin Lumber & Export Co., Inc.,

"W.H. Buck.

" 'To R.J. & B.F. Camp Lumber Co., White Springs, Fla.

"Order No. 'Aloft.' "

There was no attempt to allege the legal effect of the contract. Each count claimed damages as for the breach of a contract in writing, "in substance as follows," and then the letter is set out in haec verba, with no reference to any other contract, and no allegation, supplementary or in the way of an innuendo, as to the effect or meaning of the letter. There is no allegation, nor attempted allegation, that plaintiff ever accepted the proposed offer of defendant to purchase, or that this letter was ever answered in writing or orally. Count 2 contained the additional allegation that defendant waived the stipulation in the letter that the delivery should be made within 60 days. Count 5 contained the further allegation that:

"Plaintiff further avers that the defendant, after the execution of said contract, wrote to the plaintiff on the 2d day of March, 1910, in words and figures as follows: 'In regard to the time of delivery would state that we put on the other sixty days, and would like for you to advise us in about two weeks' time whether you will get the cargo out within that time; this for the purpose of chartering. We, of course, would give you fifteen days longer, if necessary, but must know in time, so that we can effect a charter.'

"Plaintiff further avers that on the 7th day of March, 1910, defendant wrote to the plaintiff as follows: 'In regard to chartering, we wish you would--say about 20th to 25th of this month--let us know what you then estimate will be the right time for a vessel to report. Sailing vessels are getting very hard to charter, and we would like as much notice as possible, but in this instance we do not want vessel to report until you are well satisfied that you will have the order complete.' "

Each count contained appropriate allegations as for breaches, in that the defendant refused to furnish a vessel, or refused or failed to accept the lumber claimed to have been contracted to be bought. There were demurrers to each count, and, the same being overruled, the defendant filed eight pleas, seven of which were special. To these special pleas plaintiff demurred, and, the de murrers being overruled, issue was joined. The trial resulted in verdict and judgment for the plaintiff. From the judgment defendant prosecutes this appeal, assigning for error the rulings on the pleadings above set forth. There is no bill of exceptions, and the appeal is on the record proper.

The trial court was in error in overruling the defendant's demurrers. Each count of the complaint was bad, and the demurrer pointed out one or more defects as to each count. In the present state of the record it is unnecessary for us to decide whether or not any one of the counts would support the judgment rendered; the defect was pointed out by the demurrer, and the trial court should have sustained the demurrer.

Each count is palpably defective in that it declares as for the breach of a contract, and yet fails to show that any contract existed between the parties. The very most that any one of the counts shows is that defendant wrote a letter or letters to plaintiff proposing or offering to purchase a certain quantity of lumber, on certain terms or conditions, at certain times, but that is no allegation or attempted allegation that plaintiff ever answered the letters either orally or in writing. There is no allegation whatever that the plaintiff ever accepted the proposed offer, or ever did any act indicating an intention to accept or to bind itself to do what the defendant's letters proposed for it to do. The allegation that plaintiff was ready, willing, and able to have the lumber ready for delivery is in no sense an allegation of acceptance. If the plaintiff accepted the offer, it was its duty to notify the defendant of the fact, by some word, act, or deed. There is no allegation that the plaintiff ever did any act, or said any word, indicative of acceptance, or agreeing to bind itself by the terms offered in defendant's letters, or by any other contract. The utmost that any count shows is that defendant wrote a letter proposing to buy lumber from plaintiff, but failed or refused to do or perform the promise. This is clearly not sufficient to support a cause of action. It shows no contract or contractual relations between the parties. The rule of pleading in such cases is well stated by Justice Dargan in Jones v. Powell, 15 Ala. 824:

"In declaring on contracts, the declaration must show a binding agreement between the parties, which has been violated. If a valid contract is shown, and the consideration is concurrent, that is, if the promise of the one is the consideration of the promise of the other to do a certain thing at the same time, the plaintiff must aver a

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