Penn v. Smith

• Decision Date: 11 April 1893
• Citation: 12 So. 818,98 Ala. 560
• Parties: PENN ET AL. v. SMITH ET AL.
• Court: Alabama Supreme Court

12 So. 818

98 Ala. 560

PENN ET AL. v. SMITH ET AL.

Supreme Court of Alabama

April 11, 1893

Appeal from circuit court, Lee county; J. M. Carmichael, Judge.

Action by Smith, Grainger & Cantrell against Penn & Montgomery for breach of contract. Judgment for plaintiffs. Defendants appeal. Reversed.

The 2d 3d, and 5th pleas were as follows: (2) "For further answer to whole complaint, and to each count thereof separately, defendants say that the only merchandise agreed to be purchased by defendants from plaintiffs was a lot of flour. That said flour was sold by plaintiffs to defendants. Defendants aver that a lot of flour was shipped by plaintiffs to defendants which" (defendants on inspection thereof claimed) "did not come up to said samples, and notified the defendants thereof. That plaintiffs thereupon took possession of said flour, and sold same." (3) "For further answer to whole complaint, and to each count thereof separately, defendants say that they contracted to buy of plaintiffs four hundred and fifty barrels of flour, which was not then at hand, and which plaintiffs, at the time of making the contract, had no opportunity to inspect, but which the plaintiffs were subsequently to ship to the defendants. That by said contract the plaintiffs agreed that said flour, so to be delivered, would be as good as two certain lots of flour then in possession of defendants, and which, by samples thereof, was then shown to plaintiffs; a part, to wit, one hundred and fifty barrels, to be of one grade, and, to wit three hundred barrels, of another grade. That plaintiffs did afterwards ship to defendants a lot of four hundred and fifty barrels, but said flour was of an inferior quality from that agreed to be delivered, and defendants rejected same, and gave notice of such rejection; and plaintiffs thereupon took possession of said flour, and sold same." (5) "For further answer to the original complaint, defendants say plaintiffs agreed to sell and deliver to defendants at Opelika, Ala., four hundred and fifty barrels of flour, a part of one grade, and the balance of another grade. Four hundred and fifty barrels of flour were subsequently shipped to defendants, which defendants aver, on inspection," (they claim,) "did not come up to the grade agreed to be delivered, and they notified plaintiffs thereof; and thereupon plaintiffs took said flour so shipped, and sold the same to other parties. And that said flour was never accepted by defendants." To the second and third pleas plaintiffs demurred on the following grounds: "Because they fail to show that the flour did not come up to the grade agreed to be delivered; because they did not allege that the taking possession and sale of the flour was on account of the failure of the same to come up to the sample, and the notice to plaintiffs by defendants of such fact." The plaintiffs also demurred to the fifth plea on the following grounds: "Because it failed to deny the averments of the count of the complaint to which it was directed, or to show any state of facts which would avoid such count; because it fails to show or avert that the flour did not come up to the grade agreed to be delivered; because it was too uncertain and indefinite; and because it does not show, or fails to aver, that the flour was not in fact delivered." The court overruled each of these demurrers. All the other facts are sufficiently stated in the opinion, as are also the rulings of the court upon the evidence.

At the request of the plaintiffs the court gave the following written charges: (1) "If, upon the rejection of the flour by Penn & Co., Smith, Grainger & Cantrell gave Penn &amp Co. notice that they intended to resell, and hold Penn & Co. for the loss, then, in the absence of any instruction by Penn & Co. of time and manner of resale, Smith, Grainger & Cantrell had a right to exercise their discretion, within reasonable bounds, in regard to time and manner of resale, and a sale in bulk would not be unfair to Penn & Co., if the circumstances were such to induce plaintiffs to believe that the sale in bulk was the best that could have been done." (3) "If the jury believe from the evidence in the case that the flour shipped by plaintiffs was equal to the samples exhibited by Smith to defendants, then they must find for the plaintiffs for the amount of damages actually sustained by plaintiffs in the resale of the flour, if the plaintiffs acted in good faith in the resale after defendants rejected it." (4) "Reasonable diligence and good faith to defendants would not require plaintiffs to break the lot or lots of flour, and offer said flour at retail, in the resale of the said flour." (5) "The plaintiffs were not required to delay the resale of flour for a chance of a better price for the flour, or any part of it, at expense of plaintiffs, in the absence of instruction from Penn & Co." (6) "In a sale of goods by samples the buyer cannot reject the goods purchased upon an imaginary or fanciful difference between the goods and the samples, but, to authorize the purchaser to reject the goods purchased, the difference must be real and material." (7) "If, upon the rejection of the goods in controversy in this case by the defendants, the plaintiffs manifested their election to proceed against the defendants by a resale of the goods, by giving a notice to defendants that they intended to resell, and hold defendants for the loss, if it be a fact, then it was no part of the duty of plaintiffs to give defendants notice of the time and place of resale." (8) "If the jury believe from the evidence that the plaintiffs exercised reasonable diligence in reselling the flour at the time and in the manner in which it was resold, and in the lot or lots in which it was offered, and for the price obtained, then they are entitled to recover, provided the flour was equal to sample by which it was sold, if so sold." (9) "If the defendants in this case desired notice of the time and manner of resale, they should have demanded it, or given the plaintiffs instructions to that effect." (10) "If the flour shipped by plaintiffs was the equal of samples shown by plaintiffs to defendants on former first visit to Opelika, plaintiffs are entitled to a verdict for the injury they actually sustained, with interest." (11) "The law did not require of plaintiffs to ship the flour away from Opelika to resell it, nor the retail it in Opelika. If they acted in good faith in making a resale, and obtained the best price they could for the whole lot, this discharged their duty in this respect." (12) "If the jury find from the evidence that the sale was made by the samples exhibited by the plaintiffs, then the question for the jury to determine, in considering the fact of the defendants' right to reject the flour delivered, is whether the flour came up to the samples exhibited by plaintiffs, and not whether it came up to flour in the house of Penn & Co." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by them: (1) "In reselling, the plaintiffs ought to have resold in car-load lots." (2) "If the sale in this case was by samples, and if the jury find from the evidence that the samples by which the flour was sold were compared with the flour in the store of Penn & Co., and were the same as that flour, and if they find the flour shipped to be not equal to the flour in that store with which the samples have been compared, then the plaintiffs cannot recover." (3) "If the jury find from the evidence that in Opelika the offer of 450 barrels of flour in one lot would not realize, reasonably, as good a price as offering it in car-load lots, then in this case the plaintiffs did not exercise reasonable diligence in the resale." (4) "The burden of proof is on the plaintiffs, and before they can recover in this case they must satisfy the jury, by evidence, that the flour came up to the samples by which it was sold." (5) "Even if the jury should believe that the flour came up to the samples agreed on, it was the duty of Mr. Smith to sell the flour in car-load lots, of 150 barrels, and if he did not do that he did not exercise reasonable diligence in the resale." (6) "The burden of proof is on the plaintiffs, and if the jury find from the evidence that the flour was sold by samples, before the plaintiffs can recover in this case, they must satisfy the jury, by evidence, that the flour came up to the samples by which it was sold."

A. & R. B. Barnes and Geo. P. Harrison, for appellants.

J. M. Chilton and W. J. Samford, for appellees.

HARALSON J.

The circuit...