Southern Cotton Oil Co. v. Dowling

• Decision Date: 22 April 1920
• Docket Number: 4 Div. 847
• Parties: SOUTHERN COTTON OIL CO. v. DOWLING.
• Court: Alabama Supreme Court

85 So. 544

204 Ala. 303

SOUTHERN COTTON OIL CO. v. DOWLING.

4 Div. 847

Supreme Court of Alabama

April 22, 1920

Rehearing Denied May 27, 1920

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Assumpsit by H.H. Dowling against the Southern Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Farmer Merrill & Farmer, of Dothan, for appellant.

Lee &amp Tompkins, of Dothan, for appellee.

SAYRE J.

This controversy arose out of a sale of two carloads of peanuts by plaintiff, appellee, to defendant, appellant.

There was no error in the exclusion of the testimony of the witness Hawkins as to the offer of Ramsey, defendant's bookkeeper, by telephone, to pay plaintiff for the peanuts according to stated weights and at stated prices. Defendant's insistence is that this testimony tended to support pleas 2, 3, and 5, and that, however defective these pleas may have been, they were not tested by demurrer, and testimony in support of them should have been received. Plea 2 alleged nothing more than a partial payment, and that the balance due was less than the amount claimed by plaintiff. Of course, the statement by defendant's agent had no tendency of legal account toward the establishment of that plea. The trial court was justified in treating pleas 3 and 5 as an appeal in some sort to the law of tender. In that law an offer to pay is an actual offer. Ramsey's statement by telephone, he being at Dothan, to plaintiff, that defendant would send a check for substantially the amount the latter admitted to be due, was not a tender, nor was it an actual offer to pay. It was merely an expression of readiness or willingness, one or both, to send a check for the amount conceded by defendant to be due; the implication being that plaintiff should receive the check as payment in full. 38 Cyc. 142; McIntyre v. Carver, 2 Watts & S. (Pa.) 392, 37 Am.Dec. 519. It was a mere conditional proposition in the absence of an acceptance, amounting to nothing. Camp v. Simon, 34 Ala. 126. It was not the unconditional offer alleged in the pleas.

The question made the subject of the third assignment of error, referred to in appellant's brief as error No. 2, was but a repetition on defendant's redirect examination of a matter about which the witness had already twice testified. Its allowance in these circumstances was discretionary with the court, and no error can be affirmed of the court's ruling in sustaining plaintiff's objection.

Since defendant sought to be relieved of a part of plaintiff's claim on the ground that it represented dirt, instead of peanuts, and since, under the contract between the parties whether the jury accepted plaintiff's or defendant's version, defendant could not...