W.P. Brown & Sons Lumber Co. v. Rattray

• Decision Date: 15 June 1939
• Docket Number: 7 Div. 535.
• Citation: 192 So. 851,238 Ala. 406
• Parties: W. P. BROWN & SONS LUMBER CO. v. RATTRAY.
• Court: Alabama Supreme Court

192 So. 851

238 Ala. 406

W. P. BROWN & SONS LUMBER CO. v. RATTRAY.

7 Div. 535.

Supreme Court of Alabama

June 15, 1939

Rehearing Denied Oct. 12, 1939.

Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.

Action by C. M. Rattray against W. P. Brown & Sons Lumber Company Inc., for services rendered in cutting, hauling, and sawing lumber. From a judgment for plaintiff, defendant appeals.

Affirmed.

Charges which are not expressed in the exact and appropriate language of the law may be refused without error.

Count 4 of the complaint as amended is substantially as follows:

On February 1, 1937, plaintiff and defendant entered into an oral contract by which plaintiff undertook and agreed to cut a large quantity of timber and saw the same into lumber for and to deliver the lumber cut therefrom to defendant at Blanche, Alabama, and defendant, in consideration thereof agreed that it would pay the plaintiff therefor at the rate of eight ($8) dollars per thousand feet each week for lumber delivered in that week, which said timber was that purchased from the Alabama Power Company by the defendant, some of which was west of Little River in De Kalb County, Alabama, and some east of said river in Cherokee County, in said State, it also then being agreed that plaintiff should first cut and saw the timber and deliver the lumber cut therefrom, situated west of said Little River, which amounted to, to-wit, eight (8) million feet, and for which said timber defendant had paid Alabama Power Company, and thereby secured the right to have the same cut, all of which was to have been done and performed within a reasonable time from the date on which said contract was entered into. After plaintiff had entered upon the performance of said contract of cutting and sawing said timber and delivering the lumber cut therefrom, and after he had cut and sawed timber and delivered lumber cut therefrom amounting to, to-wit, seven hundred thousand (700,000) feet, defendant declined to go on with the performance of said contract, denying that it had entered into such a contract with plaintiff, or that the same was binding on it, and refusing to further give recognition thereto and to continue the further performance thereof.

The cost to plaintiff of cutting and sawing timber and delivering the lumber cut therefrom to Blanche, Alabama, was, towit, five ($5) dollars per thousand feet, which therefore gave a profit to plaintiff in the amount of, to-wit, three ($3) dollars per thousand feet, which profit on seven million three hundred thousand feet was lost to plaintiff as a proximate consequence of said breach of the contract by defendant. After entering into said contract and of enabling him to perform the same within the time as he agreed to perform, it became and was necessary for plaintiff to purchase twelve (12) mules, two (2) motors, a large quantity of harness, two (2) wagons and other equipment in and for the cutting and sawing of said timber and transporting the lumber cut therefrom to Blanche, Alabama, the necessity of the purchase of all of which by plaintiff was known to defendant at the time said contract was entered into, and that as the proximate consequence of defendant's said breach of the contract, plaintiff sustained damages in the amount of more than twelve hundred ($1200) dollars in the care and maintenance of said mules, depreciation of their value and the care and depreciation of the value of said motors, harness, wagons and equipment.

As aforesaid and under said contract plaintiff cut and sawed timber and delivered to Blanche, Alabama, the lumber cut therefrom in the amount of, to-wit, seven hundred thousand (700,000) feet, for which defendant only paid him at the rate of eight ($8) dollars per thousand feet for, to-wit, six hundred and fifty thousand (650,000) feet, and is indebted to plaintiff for, to-wit, fifty thousand (50,000) feet of said lumber so delivered at said rate per thousand feet. Plaintiff at all times since entering into said contract has been ready, willing and able to perform the same in all respects as he agreed to and that within a reasonable time aforesaid from its date, and that he made offer to defendant to perform the same.

Over defendant's objection plaintiff introduced in evidence certain correspondence passing between plaintiff and defendant. By the letter dated November 13, 1936, plaintiff informed defendant that he had "a tract of short leaf pine timber, located near me that can be bought for about $3.00 per M."; that the tract contains 20 million feet, and asked "Would you be interested in buying this timber, and let me saw, drydress and deliver on cars?" Defendant replied by letter dated November 18, 1936, stating, "I wish you would please advise me if this tract of timber has ever been cut over and what you would cut and deliver the lumber to Alabama City for green including stumpage." By letter of November 30, 1936, plaintiff wrote defendant that none of the timber on the tract had ever been sold off, that it was good timber and would grade well; that the timber was located on the railroad and could be manufactured and put on cars where it was. He further stated that he knew of a saw mill and planer for sale, describing it and giving the price; that he already had two good saw mills and with the one there mentioned, he could "handle the tract of timber." He further proposed to contract with defendant to load a stipulated amount per day at a stated price per thousand, dried and dressed, with stumpage added, and asking that he be advised.

Subsequent correspondence looked to the meeting of plaintiff with the representative of defendant, and after some personal conversation, arranged for further meetings, asked for and furnished information with respect to available machinery to be used in performance of the work, and led up to the negotiations out of which the alleged contract grew.

These questions were propounded to plaintiff:

"What equipment, sawmills, mules and other equipment, did you acquire in order to carry out this contract?"

"What else did you buy?"

"How much did you pay for them?"

"What else?"

"How much did they cost you?"

"What else?"

"What did you get for them?"

Defendant objected to these questions. The objections were overruled, and these rulings are made the bases of assignments 15 to 21, inclusive.

These charges were refused to defendant:

"7. If plaintiff voluntarily left the employment of defendant you should not allow plaintiff any damages for the care and maintenance of the mules mentioned in the complaint, nor for the depreciation of their value, nor the value of the depreciation of the motors, harness, wagons, truck and equipment as claimed in the complaint."

"8. If the contract described in count 4 of the complaint was not to be performed within one year from the making thereof you cannot allow plaintiff any damages for the care of the mules and for their maintenance and care nor for the depreciation of the mules, motors, truck, harness, wagons and equipment as claimed therein, in this case."

Reed & Reed, of Centre, for appellant.

Roger C. Suttle and Hood & Murphree, all of Gadsden, for appellee.

KNIGHT Justice.

The plaintiff stated his case against the defendant, on amendment, in four counts. Counts five, six and seven were common counts, while count four is upon an express contract, resting in parol.

To count four, the defendant filed a number of grounds of demurrer, some taking the point that it is not averred that there was a consideration for the contract, while other grounds take the point that the contract alleged in said count came within the statute of frauds, in that by its terms it was not to be performed within one year from the making thereof.

There is no merit whatever in those grounds of demurrer taking the point that the count fails to aver that there was a consideration for the contract. The contract pleaded showed mutual promises, on the part of the plaintiff to cut, haul and saw the defendant's timber into lumber, and on the part of the defendant to pay plaintiff therefor at the rate of $8 per thousand feet of manufactured lumber. This was sufficient consideration to support the contract. Wood et al. v. Lett et al., 195 Ala. 601, 71 So. 177; 13 Corpus Juris, pp. 327-328, § 170. The court, consequently, properly overruled defendant's demurrer taking the point that the contract, as pleaded, was without consideration.

It is next argued that the contract set up, or attempted to be set up, in count four falls within the condemnation of the statute of frauds, and was therefore void. There is likewise no merit in this contention.

It is held in this jurisdiction that where it clearly appears on the face of the complaint that the contract or agreement sued on is obnoxious to the statute of frauds, advantage may be taken of the defect by demurrer--Bunch v. Garner, 208 Ala. 271, 94 So. 114--but if such invalidity does not appear on the face of the pleading the benefit of this statute must be asserted by special plea. McDonald v. McDonald, 215 Ala. 179, 110 So. 291; Trammell v. Craddock, 93 Ala. 450, 9 So. 587; Conoly v. Harrell, 182 Ala. 243, 62 So. 511. There is nothing averred in count four to show that the contract sued on was not to be performed within a year from its making, or that it was incapable of performance within that period, according to the intention of the parties. The court, therefore, committed no error in overruling these grounds of defendant's said demurrer.

With its demurrers overruled, the defendant filed eight pleas. Plea (1) was the general issue; (2) payment; (3) no consideration; (4) set off and recoupment; and (5), (6), (7) and (8) set up the statute of frauds. While it would...