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

• Decision Date: 09 April 1913
• Citation: 62 So. 245,7 Ala.App. 335
• Parties: N.B. BORDEN & CO. v. VINEGAR BEND LUMBER CO.
• Court: Alabama Court of Appeals

62 So. 245

7 Ala.App. 335

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

Court of Appeals of Alabama

April 9, 1913

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

Action by N.B. Borden & Co. for breach of contract against the Vinegar Bend Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

See also, 2 Ala.App. 354, 56 So. 775.

The action was based upon the breach of the contract by which it is alleged that defendants agreed to sell to plaintiff a cargo of lumber containing 514,200 feet of lumber at $14.50 per M. free on board vessel at Mobile at M. & O. docks shipment March and April, 1906, payments therefor by sight draft against shipping documents and order. It is then alleged that plaintiffs procured and docked a vessel at Mobile within the time required by the contract, and notified the defendant, which failed and refused to deliver said lumber, to the plaintiff's damage, including $720 for the master of the vessel as demurrage. The defense was the general issue, and set-off for $1,000, alleged in one plea to be an unliquidated demand and in another plea to be a liquidated demand. Replication set up the payment of the debt, and that before the suit brought the defendant accepted a less sum than that claimed in full satisfaction of said claim; the amount thereof being in dispute. The jury returned a verdict for $671.91 for the defendant.

The following charges were refused to plaintiff:

"(11) If you believe from the evidence that defendants received the sum of $3,937.06 in satisfaction of their entire claim under contract 116 stump, such payment operated as a full settlement and satisfaction of their claim against the plaintiffs for the cargo delivered under said contract.

"(12) If you believe from the evidence that the defendants claimed from the plaintiffs the sum of $5,064.73 for the cargo delivered to the schooner Bertha F. Walker under contract known as 116 stump, and the plaintiffs claim that they were entitled to deduct from said amount certain sums paid by them for demurrage, switchage, and wharfage, amounting to $1,127.67, and that the net amount due by them to the defendant for said cargo was $3,937.06, and if the jury believe from the evidence that the plaintiffs were right in their contention, then the defendants are not entitled to recover under their pleas of set-off. The court further charges you, gentlemen, in this connection, that whether plaintiffs or defendants were right in their contention regarding this matter, if you believe from the evidence that plaintiffs tendered defendant their check for $3,937.06 in full settlement of said account, and defendants received and cashed such check in settlement and satisfaction of their entire claim against the plaintiff for furnishing said cargo, then the acceptance and cashing of said check would constitute a full settlement of the entire claim, regardless of whether or not said amount so received was the correct amount due by the defendant.

"(14) If you believe from the evidence that plaintiffs owed defendants $5,064.73 for the lumber furnished for the schooner Walker, and that plaintiffs paid the sum of $1,000 as demurrage on said vessel, and the further sum of $54 as switching charges, and the further sum of $73.67 as wharfage, and that the plaintiffs claim the right to deduct such demurrage, switching charges, and wharfage from the price to be paid for said cargo, and if the jury further believe from the evidence that plaintiff sent to defendant a draft for the amount which plaintiffs claimed to be the correct net amount due the defendants for said cargo, accompanied by a letter stating in substance that the draft was sent in settlement of the balance due for said cargo, and the defendants refused to accept the draft, and insisted upon being paid in cash, but made no objection to the amount of the draft, and that thereupon plaintiffs gave a check to defendants for the amount of said draft, and the defendants accepted and cashed said check without protest, the receipt of the money under such circumstances constituted a full settlement of the entire claim of the defendants for the price the cargo furnished said schooner, regardless of whether plaintiffs owed defendants $5,064.73 or $3,937.06.

"(15) If you believe from the evidence that the demurrage charge of $1,000 paid by plaintiffs to the schooner Walker was a direct result of the failure of defendant to furnish the cargo for said vessel with reasonable dispatch and in accordance with the contract between the parties, it is entirely immaterial that the vessel remained in the stream several days before being berthed.

"(18) The court charges the jury that the term 'f.o.b. vessel' in the contract relating to the cargo for the schooner Walker does not mean delivery on the wharf alongside the vessel, but means delivery on board the vessel.

"(19) If the jury are reasonably satisfied from the evidence that defendants received the sum of $3,937.06 in satisfaction of the entire claim under contract 116 stump, the receipt of such amount would be an accord and satisfaction of the entire claim of defendant under said contract."

The following charges were given for defendants:

"(B) The court charges the jury that under that phase of the evidence in this case most favorable to the plaintiff there was no valid or legal release by defendants of the amount, if any, owing by plaintiffs to defendants for lumber furnished by defendants to plaintiffs and loaded into the schooner Bertha F. Walker in excess of the sum of $3,937.06 shown to have been paid by plaintiff to the defendants.

"(C) If the jury believe the evidence in this case, they will find that there was no settlement whereby defendants released any amount owing to it by the plaintiff in excess of $3,937.06 for the lumber sold and delivered to be loaded into the schooner Walker."

It appears from the correspondence that Borden & Co. inclosed to Vinegar Bend Lumber Company a charter party, which they returned, declining to accept the same and be responsible for any demurrage that might arise in the loading by the vessel not securing berth, but agreeing that when the vessel is in port and docked, to ship the lumber as per contract, and further notifying them that, if the Vinegar Bend Lumber Company loaded the vessel, they would have nothing whatever to do with the vessel, and that Borden & Co. must berth and care for the vessel at their own expense.

John E. Mitchell, of Mobile, for appellant.

R.H. & R.M. Smith and Stevens, Lyons & Dean, all of Mobile, for appellee.

WALKER, P.J.

For a statement of the nature of this case and of rulings made on some of the questions involved in it reference is made to the opinion rendered on the former appeal from a judgment granting the defendant a new trial. Borden & Co. v Vinegar Bend Lumber Co., 2 Ala.App. 354, 56 So. 775.

One of the claims of damage asserted in the complaint was based upon the alleged payment by the plaintiff of a stated sum as demurrage accruing as a result of a failure to deliver cargo to the vessel to which the contract for the breach of which the suit was brought bound the defendant to deliver lumber free on board; the theory being that his outlay was a result of the defendant's failure to deliver lumber according to the terms of its contract. A witness for the plaintiff, having testified to the payment of such demurrage, was asked to state "what was the cause of the demurrage--that vessel going on demurrage." The action of the court in sustaining the defendant's objection to that question is assigned as error. The question might well have been regarded by the court as calling, not necessarily for a statement of the facts as to the detention of the vessel upon which the claim to demurrage had been based, but for the conclusion or opinion of the witness as to who or what was responsible for such demurrage charge being incurred. If the witness had been permitted to answer the question, and had stated that the demurrage was caused by the defendant's failure to comply with its contract to deliver lumber, the answer would not have been unresponsive. It is for the jury, not for a witness, to draw such a deduction or conclusion as to a matter in issue. Painless Dentists v. Dement, 60 So. 421. It is not error to sustain an objection to a question which is so framed that it may elicit either competent or incompetent evidence. McCutchen v. Loggins, 109 Ala. 457, 19 So. 810.

But, assuming that the question should be regarded as calling for the facts upon which the claim to demurrage was based, the sustaining of the objection to it was not prejudicial to the plaintiffs, as subsequently the witness was permitted to give his version of the facts in reference to the detention of the vessel.

The defendant's claim of set-off was based upon the act of the plaintiff in deducting and retaining from the price due from it on a former sale of lumber by the defendant the sum of $1,000 paid as demurrage to the vessel upon which that lumber was shipped; the defendant claiming that it was not chargeable with such demurrage, and that the retention by the plaintiffs of the amount thereof was unauthorized and unwarranted. That former contract was evidenced by the defendant's acceptance of a written order of the plaintiffs for a bill of lumber, which order, after setting out the quantities and dimensions of the lumber desired, specified the quality, the price, the date of delivery, and the payments; the specification in reference to the price being, "$13 75/100 f. o. b. vessel, Mobile, at M. & O. docks." The appellants complain of rulings of the trial court by which they were denied the opportunity of proving the custom or usage as to the matter of procuring a...