Robert M. Green & Sons v. Lineville Drug Co.

• Decision Date: 21 April 1910
• Parties: ROBERT M. GREEN & SONS v. LINEVILLE DRUG CO.
• Court: Alabama Supreme Court

52 So. 433

167 Ala. 372

ROBERT M. GREEN & SONS v. LINEVILLE DRUG CO.

Supreme Court of Alabama

April 21, 1910

Appeal from Circuit Court, Clay County; John Pelham, Judge.

Action by Robert M. Green & Sons against the Lineville Drug Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

For a former report of this case, see 150 Ala. 112, ^[1] where the contract was set out. The general issue is in form as follows: "That the allegations of the complaint are untrue." The pleas demurred to are also set out in a former report.

The oral charge of the court is as follows: "Gentlemen of the jury, this contract requires plaintiffs to deliver the goods at Lineville before they are entitled to recover. If you find that plaintiffs shipped the goods to Oxford, Ala and refused to let the defendant have them without paying $130 in Oxford, Ala., before delivery of the goods of defendant at Lineville, they breached the contract and cannot recover in this suit." Charge 13, referred to, is as follows: "I charge you as a matter of law that the contract only required the delivery of the soda fountain and apparatus to defendant at the shipping point, Oxford, Ala and did not require plaintiffs to dray said soda fountain and apparatus to Lineville, as a condition precedent to payment."

The following charges were refused to the plaintiffs: (2) "I charge you, gentlemen of the jury, that if you find from the evidence in this case that the defendant ordered from the plaintiffs a soda fountain and apparatus, and agreed to pay $130 therefor, and, after said fountain and apparatus was shipped by plaintiffs to defendant, that defendant refused to receive the same, except at a price of $90.00, said refusal to receive said soda fountain and apparatus dispensed with the necessity for further tender or delivery, and plaintiffs are entitled to recover such damages as the evidence shows they sustained." (4) "I charge you that, if you find from the evidence in this case that defendant ordered from the plaintiffs a soda fountain and apparatus at a price of $130, and, after the same had been shipped, refused to accept delivery of same, except at a price of $90, that defendant breached said contract, and plaintiffs are entitled to recover all damages proximately resulting therefrom." (5) "I charge you, gentlemen of the jury, that it was not necessary for the soda fountain and apparatus to have been delivered by the plaintiffs for defendant to have become bound to pay for same." (6) "I charge you that the contract of sale of the soda fountain and apparatus was complete, and plaintiffs delivered same to the transportation company, and that a delivery to the carrier by the seller, in accordance with the terms of the contract, or with the specific request of the purchaser, is a delivery to the purchaser, and if the purchaser refuses to receive the same that he thereby breaches the contract, and is liable for damages proximately resulting therefrom." (8) "I charge you that, if you find from the evidence in this case that the salesman of the plaintiffs sold a soda fountain and apparatus to the defendant, and that defendant signed a written order to the plaintiffs, stating that defendant waived all rights to countermand, and that after the plaintiffs shipped said soda fountain and apparatus to the defendant that a countermand would not avail defendant, and defendant is liable for all damages proximately resulting from the giving of said order and the shipment of said soda fountain, and apparatus, suffered by plaintiffs." (10) "If you find from the evidence in this case that the defendant waived all right to countermand the order for the soda fountain and apparatus which forms the foundation of this suit, and that the defendant countermanded said order after the fountain and apparatus were shipped, then defendant breached the contract, and plaintiffs are entitled to recover all damages proximately flowing from said breach.

Walter S. Smith, for appellants.

E. J Garrison, for appellee.

SIMPSON J.

This is an action by the appellants against the appellee, claiming damages for the breach of a contract by which the plaintiffs agreed to ship a soda fountain, etc., to the defendant, to be paid for on delivery; and it is alleged that the defendant countermanded the order after the goods were shipped contrary to the express terms of the contract, that it also refused to receive and pay for the goods, etc.

This case was before this court at a previous term. Green & Sons v. Lineville Drug Co., 150 Ala. 112, 43 So. 216, 124 Am. St. Rep. 17.

It is true, as contended by the appellants, that this court has held that where a party signs a written contract, specifying that there is no verbal agreement, aside from the order, the written contract expresses the agreement, and the principal is not bound by verbal statements made by the salesman, unless he is informed of the same before shipment (Fulton v. Sword medicine Co., 145 Ala. 331, 40 So. 393); and in this case we will take the written order as the contract between the parties. When this case was here before, the court expressed some doubt about the proper construction of it, because it was evidently written by filling out a form, and the record did not show what part of it was printed, and what part written, but said that "the shipment of the goods in such way that the plaintiff could not get possession of them, until he paid the stipulated price in Oxford, was evidently not in compliance with the terms of the contract." Page 118 of 150 Ala., page 218 of 43 South. (124 Am. St. Rep. 17).

As the case now comes before the court, those parts of the contract which were in writing are identified by being in red ink, and in...