N.B. Borden & Co. v. Vinegar Bend Lumber Co.

• Decision Date: 14 November 1911
• Citation: 56 So. 775,2 Ala.App. 354
• Parties: N. B. BORDEN & CO. v. VINEGAR BEND LUMBER CO.
• Court: Alabama Court of Appeals

56 So. 775

2 Ala.App. 354

N. B. BORDEN & CO. v. VINEGAR BEND LUMBER CO.

Court of Appeals of Alabama

November 14, 1911

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

Action by N. B. Borden & Company against the Vinegar Bend Lumber Company. From a judgment granting a new trial after verdict for plaintiff, it appeals. Affirmed.

John E Mitchell, for appellant.

R. H. & R. M. Smith, for appellee.

PELHAM J.

Appellant in the court below recovered a judgment against appellee, and on the motion of the appellee the trial court set aside the judgment and ordered a new trial. The judgment of the circuit court in setting aside the verdict and granting a new trial is here assigned as error.

The grounds of appellee's motion for a new trial were, in effect, that the judgment was excessive, contrary to law, and contrary to the evidence.

careful examination of the evidence set out in the bill of exceptions does not lead us to the conclusion that it so plainly and palpably supports the verdict set aside by the trial court in the exercise of its discretion as to authorize us, in reviewing the case, to reverse the order of the court in granting the motion.

The trial judge, having a better opportunity for pronouncing upon the weight and convincing power of the evidence, is given a discretion in passing upon motions for new trial, and his action will not be reversed where the discretion has been exercised in granting such a motion unless the evidence plainly and palpably supports the verdict. Cobb v Malone, 92 Ala. 630, 9 So. 738; Smith v. Tombigbee &amp Northern R. Co., 141 Ala. 332, 37 So. 389; Woodroof v. Hall et al., 157 Ala. 416, 47 So. 570.

The original suit was brought by the appellant against the appellee, seeking to recover $2,000 damages for breach of a contract to sell and deliver lumber, and appellee, besides the general issue, filed pleas of set-off, claiming $1,000 due it from appellant under a prior contract, to which claim appellant set up accord and satisfaction.

While we deem it necessary to lay down certain rules for the guidance of the court in another trial, we refrain from discussing the evidence at any length, lest what we might say should have a tendency to prejudice the issues of fact. On the proposition of mitigating the loss it is only necessary to say that we see no reason, as a matter of law, why the rule requiring the damaged party to minimize his damages as far as he can reasonably do so should exclude an obligation to buy from the party breaching the contract if purchase can be made from him that will minimize the loss without abandoning the contract or waiving any right of action for damages for a breach growing out of it. It seems to us that the rule to this effect is correct, as declared in Lawrence v. Porter, 63 F. 62, 11 ...