Appeal
from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action
by the Paterson & Edey Lumber Company, for the use and
benefit of J.E. Paterson, against the Carolina-Portland
Cement Company. Plaintiff takes a nonsuit and appeals from
adverse rulings on pleading. Reversed and remanded.
Count
of complaint for breach of oral contract, "entered into
between plaintiff and defendant," held not
defective in not stating what authorized agent of defendant
made contract.
The
written contract involved is, in substance, as follows:
"State
of Alabama, County of Mobile:
"This agreement, made and entered into this, the _____
day of _____, 1920, by and between the Carolina Portland
Cement Company, of Atlanta, Ga., a corporation, organized and
existing under the laws of the state of South Carolina, party
of the first part, and Paterson & Edey Lumber Company, Inc.
of Mobile, Ala., a corporation organized and existing under
the laws of the state of Alabama, party of the second part
witnesseth:
"That, whereas, the party of the second part is the
owner of milling facilities, yards, lumber, sawmills, and all
facilities for the cutting of timber and the manufacture of
lumber, and is the owner of hard wood stumpage and timber in
the raw state, for the purpose of being manufactured into
hardwood lumber; and whereas, the party of the first part is
engaged in the business of buying and selling lumber, and has
facilities for the sale thereof, through its agents and
representatives; and whereas, the manufacture of lumber and
the stacking and hauling thereof involves a large expense
and whereas, it is to the interest of both parties hereto to
enter into this contract:
"Now, therefore, in consideration of the premises and of
the sum of one ($1.00) dollar in hand paid by the party of
the first part to the party of the second part, the receipt
whereof
is hereby acknowledged, the parties hereto agree as follows:
"The party of the second part agrees as follows:
"(1) That it will manufacture into lumber all hard wood
timber produced by the timber lands owned, leased, or with
reference to which it has contracts, and all hardwood timber
as to the delivery of which it has contracts existing at the
date of the execution of this contract, for delivery under
the terms of this contract."
(2) Provides for cutting of lumber to sizes directed by first
party.
(3) Provides in detail for stacking and drying of hard wood
lumber.
"(4) That all lumber manufactured for the first party
shall be loaded f.o.b. cars at Mobile, and shipped on the
orders of the first party."
(5) Provides as to bill of sale and marking of lumber upon
which the first party has made advance payment.
(6) Provides for stacking of different grades, sizes and
species of green lumber.
(7) Provides for interest upon advances made by the first
party.
(8) Regulates, in detail, how the prices at which lumber
shall be sold by the first party shall be determined: (a) As
to lumber on which no advances have been made; and (b) as to
lumber on which advances have been made.
(9) Provides for procedure where lumber is subject to lien of
third parties.
(10) Provides further for discharge of any lien which may be
created against lumber as to which the first party has made
advances.
(11) Provides that the expense of inspection of lumber
manufactured under this contract be borne by the second
party.
(12) Provides that all lumber upon which advances have been
made shall be insured by the second party for the interest of
the first party.
"The party of the first part agrees":
(1) That it will advance upon all hard wood lumber cut,
stacked and stored as provided, in lots of 100,000 feet, at
periods of not less than every two weeks, $40 per thousand
feet, provided the second party shall execute recordable bill
of sale to same, free from liens, etc., as above provided.
"(2) That it will sell all such lumber at and for prices
to be fixed in the following manner:
"(a) With respect to sales of such lumber on which no
advances have been made by the Carolina Portland Cement
Company, the Carolina Portland Cement Company shall submit to
the Paterson & Edey Lumber Company for approval and
acceptance or rejection the prices at which they propose to
sell such lumber, and if the prices are not satisfactory the
Paterson & Edey Lumber Company shall not be bound to fill
such orders.
"(b) With respect to lumber on which advances have been
made by the Carolina Portland Cement Company to the Paterson
& Edey Lumber Company, Inc., the Carolina Portland Cement
Company shall have the right to make sales at such prices as
may be fixed by them, which are not substantially and
appreciably below the ruling market price at the time when
each such sale is made, provided, however, that the Carolina
Portland Cement Company shall give the Paterson & Edey Lumber
Company notice in writing of each such sale, stating the name
of the consignee and the price at which said sale is made
within ten days after each such sale is made, otherwise
Paterson & Edey Lumber Company shall have the right to refuse
to fill such order.
"(3) That upon the delivery of the lumber f.o.b. cars
Mobile, Ala., and the receipt by the party of the first part
at Atlanta, Ga., at railroad bill of lading therefor, the
party of the first part shall remit to the party of the
second part the sale price of the said lumber so loaded
f.o.b. cars Mobile, Ala., less the amount of the advance
theretofore made thereon, upon the basis of $40 per thousand,
plus the interest from the date of such advance to the date
of the receipt at Atlanta, Ga., of the said bill of lading;
and less also:
"(a) 12 1/2 per cent. of the gross amount of said sale
price on all lumber in respect of which advances have been
made by the Carolina Portland Cement Company to the Paterson
& Edey Lumber Company, Inc.;
"(b) 7 1/2 per cent. of the amount of gross sale price
on lumber in respect of which no advances have been made by
the Carolina Portland Cement Company to the Paterson & Edey
Lumber Company.
"Which it is hereby agreed shall be the compensation to
the party of the first part for the use of its facilities and
the expense incurred by it in the sale of said lumber, less 2
per cent. off of such invoice sale price as cash discount;
and less also such expense as may be chargeable for salary
and expense of the inspectors, as hereinbefore provided. The
Carolina Portland Cement Company assumes the responsibility
of the collection for all sales, and the Paterson & Edey
Lumber Company, Inc., shall not be debited with or
responsible for any amounts not collected on account of
sales.
"The parties hereto jointly agree:
"(1) That either party hereto may cancel this agreement
upon two weeks' written notice to the other party;
provided, however, that all lumber manufactured between the
time of the receipt of such notice and the expiration of the
two weeks shall be delivered under the terms of this
agreement.
"(2) This contract shall be governed in all instances by
the sales code and inspection rules of the American Hardwood
Manufacturers Association, inspection at mill, to be final,
conclusive and binding.
"In witness whereof, the parties hereto have executed
this agreement, in duplicate, the day and year first above
written.
"Carolina Portland Cement Company,
"By ________.
"Signed, sealed and delivered in the presence of:
"________.
"________,
"Notary Public, Mobile County, Alabama.
"Paterson & Edey Lumber Company,
"By ________.
"Signed, sealed and delivered in the presence of:
"________.
"________,
"Notary Public, Mobile County, Alabama."
Count
FF, typical of the other counts based upon breach of an oral
contract, alleges that
on May 15, 1920, the Paterson Company and the Carolina
Company, acting through its agent, F.A. Brewer, thereunto
duly authorized, entered into negotiations with reference to
the sale by the Carolina Company for the Paterson Company of
certain hard wood lumber, and a written contract between said
parties was drawn providing the terms, conditions upon, and
the manner in which the Carolina Company would undertake to
sell lumber to be manufactured by the Paterson Company, which
written contract, duly signed by the proper officers of the
Paterson Company, was subject to the approval of, and was not
to be effective unless and until it was approved by, an
executive officer of the Carolina Company; that it was
thereupon orally and mutually agreed by and between said
Paterson Company and said Carolina Company, acting through
its agent, F.A. Brewer, thereunto duly authorized, "that
pending the execution of said written contract by said
Carolina Portland Cement Company, and, if not executed by it,
the time when said Carolina Company definitely notified
Paterson & Edey Lumber Company that it would not execute such
contract, the said Carolina Company would sell all of the
hard wood lumber manufactured by the said Paterson & Edey
Company at its said mill, at and for prices to average not
less than $70 per thousand feet, board measure, for all of
said lumber, for a commission of 7 1/2 per cent. of the
purchase price, or, in the event it advanced to the said
Paterson & Edey Lumber Company $40 per thousand feet on said
lumber, a commission of 12 1/2 per cent. on the purchase
price, of such of said lumber as to which such advance had
been made, and that, during said period of time, Paterson &
Edey Lumber Company must not sell any lumber nor offer same
for sale to any other person.
"The
defendant obligated itself to advance to the said Paterson &
Edey Lumber Company every two weeks $40 per thousand feet on
all hard wood lumber manufactured during the two...
