Rosengrant v. Finklea

• Decision Date: 02 November 1922
• Docket Number: 1 Div. 231.
• Citation: 94 So. 543,208 Ala. 401
• Parties: ROSENGRANT ET AL. v. FINKLEA.
• Court: Alabama Supreme Court

94 So. 543

208 Ala. 401

ROSENGRANT ET AL. v. FINKLEA.

1 Div. 231.

Supreme Court of Alabama

November 2, 1922

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by Ollie B. Finklea against G. M. Rosengrant and H. Ross Rogers. From a judgment for plaintiff, defendants appeal. Affirmed.

Where the seller did not treat defendant's refusal to accept delivery of the lumber sold within the stipulated contract time as a breach, as he could have done, but granted an extension of time for completion of delivery requested by the buyer, such extension did not absolve the buyer of his duty to take the lumber.

The complaint reads as follows:

"(1) Plaintiff claims of the defendants the sum of $1,594.11 damages for the breach of a contract entered into by and between the plaintiff and defendants on, to wit, April 2 1920, in substance as follows: The defendants agreed to buy and the plaintiff agreed to sell, to wit, all of the pine lumber 1 inch by 6 inches, and 1 inch by 8 inches, and 1 inch by 10 inches, and 1 inch by 12 inches in size, 10 feet and up in length, square edge and sound, about 85,000 feet and all of the pine lumber known as 'dimension' 2 inches by 6 inches, and 2 inches by 8 inches, and 2 inches by 12 inches, in size, and 10 feet and up in length, square edge and sound, about 75,000 feet, then on the millyard of plaintiff, that millyard plaintiff got from Mack Daily, near Corduroy, Ala., at $31.50 per thousand feet, all to be delivered by plaintiff f. o. b. cars at Corduroy, Ala., terms of payment cash as lumber was loaded in cars, and delivery to be made as soon as possible after date of contract, and plaintiff says that, although he has complied with all the provisions thereof on his part, in that he delivered promptly after the date of the contract on cars at Corduroy, to wit, 30,629 feet of said pine lumber, and was ready, able and willing, and offered then and there, to deliver the balance of said lumber, including that known as 'dimension,' to wit, 138,618 feet the defendants have failed to comply with the following provisions thereof, viz.: The defendants accepted delivery and paid for only, to wit, 30,629 feet of said lumber, and refused to permit plaintiff to deliver on cars the balance of said lumber, including what is known as 'dimension,' and refused to receive delivery of same although required by plaintiff to do so, and thus wholly failed and refused to accept the remaining lumber, including that known as 'dimension,' contracted for. Plaintiff avers that, by reason of, and as a proximate consequence of, the breach of said contract as alleged, plaintiff was forced to, or did, go into the market and sell the balance, to wit, 138,618 feet of said lumber, including that known as 'dimension,' at a greatly reduced price. Plaintiff avers that he sold the said lumber, including that known as 'dimension,' in open market, after having given defendants due notice of his intention so to do, and of his intention to call upon defendants to pay plaintiff any loss sustained by their failure to take the lumber as agreed. Plaintiff avers that in all this he was put to considerable trouble and expense in and about selling said lumber, all to plaintiff's damage, as aforesaid; hence this suit.

"(2) The plaintiff claims of the defendants $1,594.11 damages for the breach of an agreement entered into by them in writing on, to wit, April 2, 1920, in substance as follows: The defendants bought of plaintiff all the following pine lumber then on plaintiff's millyard, that millyard plaintiff got from Mack Daily, near Corduroy, Ala., of the following sizes, to wit: 1x6-8-10 and 12"' S. and S.E. 10' and up, about 85 M feet at $31.50 per M, and all of the dimension on said millyard 2x4-6-8 and 12"' 10' and up, S.E. S. about 75 M feet at same price per M, all f. o. b. cars, Corduroy, Ala. Terms, cash as loaded on cars; delivery as soon as possible. Meaning thereby that defendants bought of plaintiff all the pine lumber then on said millyard that was 1 inch thick by 6 inches and by 8 inches and by 10 inches and by 12 inches wide and 10 feet and up long, square edge and sound, about 85,000 feet, at $31.50 per thousand feet, and the pine timber on said millyard known as dimension stock that was 2 inches thick by 4 inches wide, and by 6 inches wide and by 8 inches wide and by 12 inches wide, 10 feet and up long, square edge and sound, about 75,000 feet, at $31.50 per thousand feet, to be delivered by plaintiff free on board cars at Corduroy, Ala., as soon as possible after April 2, 1920, the date of the contract, and that defendants would pay cash therefor as the lumber was loaded on cars. And the plaintiff says that, although he has been ready, willing, and able to comply with all its provisions on his part, namely, to put the whole of said lumber on the cars at Corduroy, Ala., immediately after the said contract was made, the defendants have failed to comply with the following provisions, viz.: There was at the time said contract was made, on said millyard, of the lumber of all kinds specified therein, to wit, 169,247 feet, and the plaintiff delivered on cars at Corduroy, Ala., and defendants accepted and paid for at the contract price 30,629 feet of said lumber, leaving, to wit, 138,618 feet, on said yard, and the defendants refused to accept delivery of said, to wit, 138,618 feet of said lumber, although plaintiff was ready, willing, and able to deliver said lumber on cars at Corduroy, Ala., and so informed defendants, and required them to accept it, but defendants refused to accept said lumber, and therefore plaintiff, after due notice to defendants, sold the said undelivered lumber at the best prices obtainable on the market, to wit, $20 per M, leaving a balance of $11.50 per M loss to plaintiff, which amount aggregated, to wit, $1,594.11, to plaintiff's damage, for which sum of money, with the interest thereon, plaintiff sues.

"(3) Plaintiff claims of the defendants the sum of $1,594.11 damages for the breach of a contract entered into by and between the plaintiff and defendants, on, to wit, April 2, 1920, in substance as follows: The defendants agreed to buy and the plaintiff agreed to sell, to wit, all of the pine lumber 1 inch by 6 inches, and 1 inch by 8 inches, and 1 inch by 10 inches, and 1 inch by 12 inches in size, 10 feet and up in length, square edge and sound, about 85,000 feet, then on the millyard of plaintiff, that millyard plaintiff got from Mack Daily, near Corduroy, Ala., at $31.50 per thousand feet, all to be delivered by plaintiff f. o. b. cars at Corduroy, Ala., terms of payment cash as lumber was loaded in cars, and delivery to be made as soon as possible after date of contract, and plaintiff says that, although he has complied with all the provisions thereof on his part, in that he delivered promptly after the date of the contract, on cars at Corduroy, Ala., to wit, 30,629 feet of said pine lumber, and was ready, able, and willing, and offered then and there, to deliver the balance of said lumber, to wit, 68,618 feet, the defendants have failed to comply with the following provisions thereof, viz.: The defendants accepted delivery, and paid for only, to wit, 30,629 feet of said lumber, and refused to permit plaintiff to deliver on cars the balance of said lumber, and refused to receive delivery of same, although required by plaintif

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