W.F. Covington Mfg. Co. v. Ferguson

• Decision Date: 15 April 1920
• Docket Number: 3 Div. 444
• Citation: 204 Ala. 192,85 So. 726
• Parties: W.F. COVINGTON MFG. CO. v. FERGUSON.
• Court: Alabama Supreme Court

85 So. 726

204 Ala. 192

W.F. COVINGTON MFG. CO. v. FERGUSON.

3 Div. 444

Supreme Court of Alabama

April 15, 1920

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by F.H. Ferguson against the W.F. Covington Manufacturing Company, for breach of contract to sell corn. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

Weil Stakely & Vardaman, of Montgomery, for appellant.

Coleman Coleman & Spain, of Birmingham, and Steiner, Crum & Weil, of Montgomery, for appellee.

This appeal was submitted under rule 46 (65 South. vii), Supreme Court Practice, and the opinion of the court delivered by

THOMAS J.

The suit is on the common counts and for a breach of contract of sale "of 11 cars of corn in the ear at $1.50 per bushel." The defendant challenged the sufficiency of the count for breach of contract as being void for uncertainty in that the contract averred fails to state the number of bushels of corn contained in the car, the weight of a car of corn, or the minimum capacity as a car of corn.

The contract averred is not void for uncertainty, and is not open to the objections pointed out in Elmore, Quillian & Co. v. Parrish Bros., 170 Ala. 499, 54 So. 203; Sloss-Shef. S. & I. Co. v. Payne, 192 Ala. 69, 68 So. 359; Sloss-Shef. S. & I. Co. v. Payne, 186 Ala. 341, 64 So. 617. This court has sustained similar contracts as that on which this suit is rested. Thompson v. Strong, 74 So. 34 (3 cars of cotton seed); Ward v. Cotton Seed Products Co., 193 Ala. 101, 69 So. 514 (2 carloads of cotton seed); Baker v. Lehman, Weil & Co., 186 Ala. 493, 65 So. 321 (100 bales of cotton to average in weight not less than 490 pounds nor more than 510 pounds per bale); Sou. Ry. Co. v. Harris, 202 Ala. 263, 80 So. 101 (for the conversion of 25 bales of cotton); Shore Lumber Co. v. Am. Lbr. & Exp. Co., 23 Ga.App. 135, 97 S.E. 667 (a definite number of "large" carloads of lumber as specified and at a price indicated). Our court has approved the following quotations from 35 Cyc. pp. 210, 639, defining the meaning of a carload:

Page 210: "Where the goods are sold by the 'carload' the term may be construed by the custom of trade, but in the absence of any agreement or particular custom it will ordinarily be held to mean the capacity of a car used for transporting the particular kind of goods sold. So too a sale of a 'cargo' of goods means ordinarily the entire load of the vessel, and is limited only by the capacity of the vessel."

Page 639: "Quantity on which Damages will be Computed.--If no fixed quantity of goods is contracted for, but the purchase is of a 'carload,' damages should be computed on the amount usually contained in an ordinary car."

The counts were not subject to demurrer directed thereto.

Moreover, there was no contest on the trial, where the plea was the general issue as to plaintiff's right of recovery; as to this he was entitled to the affirmative charge, which was given by the court.

It has been held that if the party obtaining the judgment was entitled to the affirmative charge, which was given, this would cure certain errors of pleading indicated in the following cases: Lawrenceburg Roller Mills Co. v. Jones & Co., 85 So. 719; Merriweather v. Sayre M. & M. Co., 182 Ala. 665, 62 So. 70; Sou. Ry. Co. v. Harris, 202 Ala. 263, 80 So. 101, 103; Hambright v. B.R.L. & P. Co., 201 Ala. 176, 77 So. 702; Conn v. Sellers, 198 Ala. 606, 73 So. 961, 962; Hill v. McBride, 125 Ala. 542, 543, 28 So. 85; Andrews Mfg. Co. v. Porter, 112 Ala. 381, 385, 20 So. 475; Waldman v. M.B. & M. Ins. Co., 91 Ala. 170, 175, 8 So. 666, 24 Am.St.Rep. 883.

We will observe of the evidence that it is undisputed that plaintiff extended the time for performance of the contract (as to the delivery of the three cars of corn in question) until there was repudiation of the contract on the part of defendant and the purchase by plaintiff of three cars of corn at its market price in Birmingham. Under the authorities, the market price is fixed and governed as of the time to which the delivery on contract was so postponed (Lowy v. Rosengrant, 196 Ala. 337, 71 So. 439; Craig v. Pierson L. Co., 179 Ala. 535, 60 So. 838, 35 Cyc. 637); and at the place of delivery (Bell v. Reynolds, 78 Ala. 511, 56 Am.Rep. 52; Creig v. Pierson, supra; Crandall-Pettee Co. v. Jebeles & Colias, 195 Ala. 152, 157, 69 So. 964; Cent. of Ga. Ry. Co. v. Isbell, 198 Ala. 469, 473, 73 So. 648; Curjel & Co. v. Hallett Mfg. Co., 198 Ala. 609, 73 So. 938). The measure of damages for nondelivery is based on the difference between the agreed price and the market price at the time and place of delivery with interest. Vann v. Lunsford, 91 Ala. 576, 8 So. 719; Clements v. Beatty, 87 Ala. 238, 6 So. 151, and foregoing later authorities.

The evidence tended to show that on February 4, 1918, defendant wrote plaintiff, recognizing the contract as executory; that on the day following plaintiff wired defendant he would buy for defendant's account the 3 carloads of corn at the place of delivery, and immediately defendant wired that he had performed the contract in the previous shipments; that is, he claimed to "have already shipped 10 over cars." To this plaintiff replied that he was buying for account of defendant 3 cars of corn, and would send draft on Covington Manufacturing Company for the difference in price between what he would have to pay in the market at the point of delivery and the contract price of the corn. To this defendant replied:

"I had equally as much right to give you so many tons of corn as you had to expect me to ship you so many tons, inasmuch as 20,000 lbs. or ten tons make a minimum car as per railroad schedule. In fact, if you had considered I sold you eleven cars of corn, I would then have given you eleven cars--considerably above the min."--

and again two days later:

"We consider that we have filled our contract in the absence of the terms not being specified as to the number of tons each car should hold, and we shall stand on shipments already made you on any suit you might file against us."

Such was the controversy under the evidence.

The testimony tended further to show without conflict that on the date indicated plaintiff purchased 3 cars of corn in the market at the point of delivery, and billed defendant for the amount paid in excess of the contract...