Steele By-Products Co. v. McGee & Cowart
| Decision Date | 31 October 1922 |
| Docket Number | 6 Div. 59. |
| Parties | STEELE BY-PRODUCTS CO. v. MCGEE & COWART. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.
Action by McGee & Cowart against the Steele By-Products Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
James H. Willis, of Birmingham, for appellant.
Joseph T. Collins, Jr., of Birmingham, for appellee.
The demurrers to count 3 of the complaint should have been sustained.
While the allegation that the plaintiffs "were ready, willing and able to perform said contract according to the terms thereof," was sufficient to show ability to comply with the contract within the time specified by the terms thereof on the part of the plaintiff, yet the breach thereof, charged to the defendant, that it "breached said agreement by refusing to accept" the commodity named in the agreement, is not an allegation that the refusal to accept occurred while the contract was binding upon the defendant. Under the terms of the contract, as set out in the complaint the defendant, who was the buyer, was bound to accept the commodity during the month of December, and a refusal to accept during the month of delivery, delivery being tendered, or an absolute repudiation of the contract, and notification to the seller that he will not accept the property when the time for delivery arrives, being made any time after the execution of the contract and before the final date of delivery had expired, would have constituted such refusal as would have been a breach of the contract on the part of the buyer, and would have authorized the seller to treat the contract as breached. Jebeles & Colias Confectionery Co. v. Stephenson, 6 Ala. App. 103, 60 So. 437.
"A party seeking to recover as for the breach of a contract containing mutual and dependent covenants or stipulations must aver and prove that he was able, ready, and willing to perform, as well as that defendant failed to perform on his part." Duffey v. Southern Mfg. Co. (Ala. Sup.) 92 So. 545; Moss v. King, 186 Ala. 475, 65 So. 180; Terrell v. Nelson, 177 Ala. 596, 58 So. 989.
It would appear, however, that under Supreme Court Rule 45 (175 Ala. xxi, 61 South. ix), and numerous decisions of that court construing this rule, that, as applied to the facts in the instant case, the ruling of the trial court in respect to the demurrers did not injuriously affect any substantial rights of the party complaining. Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; Best Park & Am. Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; So. Ry. Co. v. Harris, 202 Ala. 263, 80 So. 101; Ex parte Minor, 203 Ala. 481, 83 So. 475, 10 A. L. R. 687.
The suit was for damages claimed by the seller growing out of an alleged breach of a contract, whereby the appellant (buyer) agreed to buy from appellee (seller) 150 tons velvet bean meal of a certain grade, for delivery during the months of November and December. The question of the November delivery of 50 tons was eliminated by amendment of the complaint, the trial being had on count three, which only claimed damages for failure of the buyer to accept the December delivery; the seller alleging they were ready, willing, and able to make delivery during the month of December of the meal according to the terms of the contract.
It is a sound proposition of law that if the buyer notified the seller that they would not receive or accept the meal in case they delivered it, and as stated before this refusal was within the time the seller had to deliver under the terms of the contract, this would be a breach of the contract on the part of the buyer, and the seller would be excused from delivering the meal as a condition precedent to a recovery. Terrell v. Nelson, supra. In all such cases the facts of the particular case must determine whether the seller, under the circumstances, was justified as treating the contract as at an end, for, to use the language of the Supreme Court of the United States in Smoot's Case, 15 Wall. 36, 21 L.Ed. 107:
"A mere assertion that the party will be unable, or will refuse to perform his contract, is not sufficient; it must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for if he afterwards continue to urge or demand a compliance with the contract, it is plain that he does not understand it to be at an end." Jebeles & Colias Confectionery Co. v. Stephenson, supra.
In the instant case, the appellant's notation on the appellee's letter of November 28th that, was such an unequivocal and absolute refusal to comply with its promise on the part of the appellant, and the evidence shows was so considered and acted upon as such by the appellee. It thus appears that the refusal to accept was during the time when such duty rested upon the defendant.
There was no error in the ruling of the trial court that the contract was divisible, and that on failure to comply with the provisions as to the December meal suit could be maintained for such breach. While the execution of the contract appears of one date, and calls for the delivery of one kind of commodity, viz. velvet bean meal, yet the months of delivery are different, the price of the commodity is different for each month, and the freight charges and war tax are to be paid by the seller on the November contract, while the freight charges and war tax were to be paid by the buyer on the December contract. It thus appears that the commondity was to be delivered in installments, and the...
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