Swedenburg v. Copeland

• Decision Date: 18 August 1955
• Docket Number: 6 Div. 862
• Citation: 82 So.2d 227,263 Ala. 241
• Parties: W. W. SWEDENBURG v. H. L. COPELAND et al.
• Court: Alabama Supreme Court

Page 227

82 So.2d 227

263 Ala. 241

W. W. SWEDENBURG v. H. L. COPELAND et al.

6 Div. 862.

Supreme Court of Alabama.

Aug. 18, 1955.

H. T. Carter, Columbus, Miss., and John H. Curry, Carrollton, for appellant.

B. G. Robison, Jr., Carrollton and W. A. Davis, Aliceville, for appellees.

PER CURIAM.

This suit was brought by the buyers (plaintiffs) against the seller (defendant) because of the breach of a contract for the sale of one hundred and sixty-two bales of cotton at a fixed price. There were verdict and judgment for plaintiffs fixing their damages at $1,620. The appeal is by defendant.

There was no controversy as to the validity and effect of a contract to sell the cotton at forty-one cents a pound being made and signed by defendant (appellant) at about 10:00 or 10:30 on the morning of November 9, 1951, after plaintiffs, earlier that morning, had obtained an option from defendant to sell them the cotton at the price stipulated, provided they exercised it by 12:00 o'clock noon of that day. After obtaining the option plaintiffs negotiated a sale of the cotton at forty-three and one-half cents a pound, or at a profit of $12.50 a standard bale of 500 pounds. Plaintiffs then returned to defendant and accepted the option agreeing to purchase the cotton, and wrote a memorandum contract for him to sign, which he did. It was not signed by plaintiffs. This contract stipulated that payment was to be made 'by check on the Bank of Reform, Reform, Alabama,' specifying no time in which to do so. Defendant contended that payment was to be made at the bank and that he went to the Bank of Reform at 3:00 o'clock that afternoon and there was no money or check for him.

Appellees claim they had made arrangements with their purchaser, Langdon, for a check payable to appellant covering the purchase price of the cotton at forty-one cents a pound in full payment as stipulated; also they had applied for a loan from the bank at Reform for the necessary amount which was approved; that Langdon had negotiated a sale of the cotton to Rice Brothers and they had agreed to give a check to appellant in an amount necessary to carry out the contract. Appellees claim they were prepared to get a check to appellant at the time of the writing of the contract at 10:00 or 10:30 that morning, but that appellant first wanted some figuring done with his tenants and had Atkins, one of the appellees, to do the figuring while the other appellee, Copeland, was called to Tuscaloosa on other business. Copeland returned about 4:00 o'clock that afternoon, but had difficulty locating appellant as he was not on the farm at Ethelville, so Copeland went to his home at Columbus, Mississippi, but he was not there. Copeland then made another unsuccessful trip to the farm. About 6:30 or 7:00 P. M. Copeland went back to appellant's home and found him, at which time he told defendant he was ready to deliver the check of Langdon or Rice Brothers on the Bank of Reform, which defendant refused, saying: 'Even if you paid me $5,000 extra I wouldn't sell it to you and no son-of-a-bitch is going to make that much off of me.' There was no objection made as to the nature of the check which was then proposed, but defendant refused to proceed with the sale.

We shall not undertake to analyze each assignment of error in the light of appellant's brief with respect to it. As to many of them the brief is barely more than a repetition of what is shown by the record. However, there are some principles of law sought to be applied in appellant's brief to which we shall refer. The various counts allege that defendant refused to sell and deliver said cotton, and either that plaintiffs had complied with all the provisions of the contract or that they were ready, able, willing and offered to do so. Several of the counts make a general claim of $3,000 damages for a breach of the contract by defendant, but do not claim special damages. The last two counts also claim special damages in the loss of gains and profits which, it is alleged, would have accrued had defendant carried out his contract. The special claim for damages is not otherwise specific. There was no motion to expunge for insufficient averment. Western Union Tel. Co. v. Favish, 196 Ala. 4(10), 71 So. 183; Central of Georgia R. Co. v. Ashley, 159 Ala. 145(6), 48 So. 981.

It is first insisted by appellant that those counts which do not make claim for special damages are subject to the demurrer interposed to them on that account. But that contention is not well supported. In general, the rule in that connection is that a complaint is good without the averment of special damages when the law implies nominal damages for the default complained of, but this does not authorize proof of 'special damage'. Donnell v. Jones, 13 Ala. 490; Norton v. Kumpe, 121 Ala. 446, 25 So. 841; Lambert v. Jefferson, 251 Ala. 5, 36 So.2d 594(6). A general claim of damages opens the way to prove and sustain 'general damages' without being limited to nominal damages. General damages are such as naturally and necessarily flow from the wrongful act, while 'special damages' are such as naturally, but not necessarily, flow from it. Lambert v. Jefferson, supra; Waters v. Weintraub, 255 Ala. 530(4-5), 52 So.2d 510; Code, Title 57, section 73.

When a vendor has failed or refused to deliver goods sold to the purchaser the measure of damages for the breach, if the price has not been paid, is the difference between the contract price and the market price at the time and place of delivery with interest. This is general damages. But if there are special circumstances under which the contract is made and they are communicated to the opposite party, the damages proximately resulting from those special...