McIntyre Lumber & Export Co. v. Jackson Lumber Co.

• Decision Date: 10 February 1910
• Citation: 165 Ala. 268,51 So. 767
• Court: Alabama Supreme Court
• Parties: MCINTYRE LUMBER & EXPORT CO. v. JACKSON LUMBER CO.

51 So. 767

165 Ala. 268

MCINTYRE LUMBER & EXPORT CO. v. JACKSON LUMBER CO.

Supreme Court of Alabama

February 10, 1910

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Jackson Lumber Company against the McIntyre Lumber &amp Export Company. From a judgment in favor of plaintiff defendant appeals. Affirmed.

Fitts & Leigh, for appellant.

Roach & Chamberlain, for appellee.

MAYFIELD J.

Appellee, a company engaged in the manufacture and sale of lumber, including cross-ties, sued appellant, a lumber company engaged in the purchase, sale, and export of lumber, including cross-ties, for a breach of an alleged contract. Issue was joined on count 3 as last amended, and counts 4 and 5 added by amendment.

The third count as last amended was as follows: "(3) The plaintiffs claim of the defendants the further sum of one hundred and six and 39/100 dollars ($106.39) and the interest thereon, damages, for the breach of an agreement entered into by them on, to wit, July 20th, 1907, in substance as follows: The defendants agreed to purchase all of the heart ties, 5"'x8"'x8', meaning thereby 5 inches thick by 8 inches wide by 8 feet long, that the plaintiffs manufactured at their mill, until the defendants notified the plaintiffs to discontinue the cutting, the plaintiffs to load the ties on the cars on the railroad near the plaintiffs' mill, at and for the price of fifteen dollars ($15.00) per thousand feet f. o. b. cars; and plaintiffs agreed to sell to the defendants the said ties at the price and on the terms above specified. And the plaintiffs aver that they made, to wit, 7,093 feet of such ties for the defendants, and had the ties ready to load on cars, whereupon the defendants instructed, or advised, plaintiffs that they would take no more ties from the plaintiffs, and although the plaintiffs continued to have the said ties so manufactured, ready for loading, the defendants refused to accept the said ties, and to pay for same."

The other counts were practically the same as this, except that they averred that the ties were to be delivered on board the cars, and that defendant refused to accept the ties or to allow plaintiff to load and deliver, etc.

It is first insisted by appellant that the counts do not state a cause of action, in that they do not show any mutual agreement, binding alike upon both parties, and that the alleged contract is so vague and indefinite as to be wholly void for uncertainty. It is true that a contract for the future delivery of personal property may be void because there is no consideration or mutuality, if the contract or any material part of it is wholly conditioned by the will, wish, or want of only one of the parties; but an accepted offer to furnish or deliver such articles as may be needed or consumed by a person in a given business, during a limited time, is binding, because it contains the accepted offer to purchase all the articles thus required during this time, and from the party who invokes the offer, but a mere offer to furnish such as a party might want or desire would be void. A contract to purchase the entire output of a mill or plant, for a given and reasonable time, at a given price, is valid, and so, likewise, is a contract to purchase the entire output of a certain product of a plant, such as all the heart lumber, at a certain price; but an agreement to purchase all that the manufacturer desires to sell to the purchaser, at a certain price, or all that the purchaser desires to take, at a certain price, would be void. The mere fact that the amount of the product is uncertain or depends upon the will or efforts of the manufacturer, does not render the contract void. It is the fact that whether he will be bound depends upon his will or caprice that renders the contract void. All contracts for the entire output of a given plant or business, of course, as to amount produced, depend more or less upon the will and efforts of the manufacturer; likewise does the amount of the purchase of all the materials a party may need in his business depend in a measure upon his will and efforts.

This contract in question was nothing more nor less than an agreement on the part of the defendant to purchase all the cross-ties of a given kind manufactured by the plaintiff, who was engaged in the business of manufacturing lumber, at a given price, until the purchaser ordered the manufacturer to make no more. It is true that the purchaser could terminate the contract at its pleasure, but it was required, as a part of this contract, to take all those on hand at that time, at the agreed price, and on the conditions fixed by the contract. It is likewise true that the...