Southern States Co. v. Long

• Decision Date: 28 November 1916
• Docket Number: 6 Div. 90
• Citation: 15 Ala.App. 286,73 So. 148
• Parties: SOUTHERN STATES CO. v. LONG.
• Court: Alabama Court of Appeals

73 So. 148

15 Ala.App. 286

SOUTHERN STATES CO. v. LONG.

6 Div. 90

Court of Appeals of Alabama

November 28, 1916

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Assumpsit by the Southern States Company against T.L. Long, doing business as the Cash Grain Company. Judgment for defendant and plaintiff appeals. Reversed and remanded.

Instruction that seller could recover no damages for buyer's breach of contract, unless seller had given notice of intention to resell, or market price had fallen, held bad in ignoring right to nominal damages.

The complaint contains five counts; the first setting out a contract by defendant with plaintiff to buy and that defendant did buy of plaintiff a quantity of corn and oats, agreeing to pay therefor the sum of $679.90, and plaintiff shipped said goods in accordance with said contract to defendant at Jasper, Ala., and that when said goods arrived in Jasper, Ala., defendant refused or failed to accept and pay for same. Plaintiff avers that it performed all its part of said contract, and after defendant refused or failed to accept and pay for said goods it sold said goods in the market for $551.68, and was put to much expense, etc., to its damage in the sum of $166.30. Count 2 is practically same as 1. Count 3 sets up a contract to purchase oats, agreeing to pay for same on arrival at Jasper, Ala., in the sum of $171.88, and that plaintiff shipped said oats in accordance with said agreement of sale and purchase, and when the same arrived in Jasper defendant refused or failed to accept and pay for same. Plaintiff sold said oats in the market at a loss of $166.30. Counts 4 and 5 are the common counts.

The pleas set up the contract as set out in the complaint, and allege that on the day the goods arrived at Jasper defendant was continuously away from Jasper for about 40 days, and that during his absence his business was in charge of his agent H.S. Long, and that neither defendant nor his agent had the money to pay for said corn and oats, and that the same was left in a car at the depot, and that some time thereafter plaintiff's authorized agent was at Jasper, and entered into a contract with defendant to let said corn remain in said railroad car without delivery to defendant, and to extend the time of payment of said corn until such time as defendant returned to Jasper, the defendant agreeing that on his return he would pay purchase price of the corn and oats, and would pay all demurrage or storage charges made by the railroad, but that thereafter, on a later date, and before defendant had returned to Jasper, another agent of plaintiff came to Jasper and made demand on defendant's agent that said corn and oats be paid for, defendant's agent explaining to plaintiff's agent the contract by which the corn and oats were to be left until defendant should return to Jasper, when payment would be made, and the oats and corn taken out, but, notwithstanding this, plaintiff's said agent broke and violated its said contract and agreement, and without defendant's consent, and over defendant's protest, sold said corn and oats to Phillips & Stanley, Jasper, Ala. The third plea is same as the one above set out, with the additional allegation that the oats and corn were sold to Phillips & Stanley without giving defendant notice that plaintiff would hold defendant responsible for the difference in the price which defendant was to pay plaintiff for the corn and oats and the price at which plaintiff was to resell said corn and oats to other parties at Jasper. The fourth plea is similar to the second, with the added averment that defendant returned to Jasper on March 23, 1915, and on said date he was able, ready, and willing to pay plaintiff for such corn and oats, and was ready, able, and willing to pay demurrage charges on same as was agreed. The fifth plea was similar to the second, with the additional averment that the sum of $551.68 obtained by plaintiff for said corn and oats was not the reasonable market value of same in Jasper at the time thereof, but that said corn and oats were worth a much larger and greater sum. The sixth plea sets up that after the corn and oats were delivered at Jasper, or arrived there, plaintiff waived defendant's breach of the contract and mutually agreed with defendant to wait on the payment of said corn and oats until defendant should return to Jasper, and that, on defendant's return, plaintiff had already sold and delivered said corn and oats to other parties.

The following are the charges referred to as given for defendant:

(8) Defendant is not liable for any expense incurred by plaintiff in sending its agent to see about the grain shipped to defendant, or in making a sale of said grain to any other person in Jasper, nor is it liable for the expense of any telegram sent by plaintiff or its agent.

(9) Before plaintiff can recover of defendant the difference between the price which defendant was to pay for the corn and oats and the price that Phillips & Stanley paid for said grain, the jury must be reasonably satisfied from the evidence that plaintiff gave defendant reasonable notice of its intention to resell said grain to other parties, and that plaintiff gave notice to defendant or his authorized agent that it would hold defendant liable or responsible for the difference between the price defendant was to pay for said grain and the price at which it was going to be resold to other parties.

(10) Unless the jury are reasonably satisfied from the evidence that plaintiff notified Henry Long, as agent for T.L. Long, that plaintiff was going to hold defendant responsible for the difference between the price defendant agreed to pay for the corn and oats and the price at which plaintiff sold the corn and oats at a resale thereof on March 19, 1915, then plaintiff would not be entitled to recover any damages at all from the defendant, unless the evidence in the case shows that the market value of said corn and oats was less on March 19, 1915, than it was at the time defendant agreed to buy said corn and oats.

Finch & Pennington, of Jasper, for appellant.

E.R. Lacy, of Jasper, for appellee.

BROWN J.

It is elementary law that a contract may be executed as to one of the parties and executory as to the other. 9 Cyc. 244(c). Where one of the parties to a contract has performed everything necessary to be done by him according to the terms of the contract, the contract, so far as that party is concerned, is executed and not executory. 6 R.C.L. 590, § 9; Denton v. English, 2 Nott & McC. (S.C.) 581, 10 Am.Dec. 638. Ordinarily, in the absence of special provisions, a contract of bargain and sale cannot be said to be an executed contract until the property in the thing sold passes from the seller to the purchaser. Loval v Wolf, 179 Ala. 505, 60 So. 298. When, however, it is stipulated otherwise, as that the goods are to be shipped seller's order notify purchaser, and draft made with bi...