Standard Lumber Co. v. Hosmer

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, C.J.
• Citation: Standard Lumber Co. v. Hosmer, 225 Ala. 321, 142 So. 825 (Ala. 1932)
• Decision Date: 25 June 1932
• Docket Number: 6 Div. 185.
• Parties: STANDARD LUMBER CO. v. HOSMER.

142 So. 825

225 Ala. 321

STANDARD LUMBER CO. v. HOSMER.

6 Div. 185.

Supreme Court of Alabama

June 25, 1932

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for work and labor by W. R. Hosmer against the Standard Lumber Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

Smyer Smyer & Bainbridge, of Birmingham, for appellant.

Jim Gibson, of Birmingham, for appellee.

ANDERSON C.J.

This case was submitted to the jury upon the fourth count alone which was for work and labor done by the plaintiff for the defendant. Under this count the plaintiff was entitled to recover as for any commissions due him for lumber sold and collected for by the defendant, less, of course, any advances or payments previously made him by the defendant.

As to the plaintiff's right to recover for profits on lumber not shipped and sold under the Chesapeake & Ohio Railway Company order, a different question arises. It is, of course the rule that when money is due under an express contract and nothing remains to be done by the parties to it but the payment of a sum of money, the party to whom the money is due may maintain an action upon the common counts against the debtor for the money so due. In such a case, the plaintiff may either declare specially upon the agreement, or he may sue, as stated, upon the common counts. If, on the other hand, the suit is for damages for the breach by the defendant of an express contract, the plaintiff must declare specially upon the contract and must aver the breach by the defendant of the contract. Elrod Lumber Co. v. Moore, 186 Ala 430, 65 So. 175, and cases cited. Therefore, if this plaintiff had any cause of action as for his profits which would have been made had the defendant filled the entire order of the Chesapeake & Ohio Railway, his remedy was for a breach of the contract. Regardless of what the original agreement of the parties was, as to the duty of the plaintiff to purchase or assist in purchasing lumber to fill orders secured by him, it is uncontroverted that when negotiating this order of the Chesapeake & Ohio Railway, and when accepted by the defendant, it was understood that the plaintiff was to purchase or assist in securing the lumber to fill said order. The proof shows, at best, only a partial effort to comply with this part of the contract by the plaintiff, his excuse being that the defendant failed to pay his expenses, but which the defendant claims were to be...