Wagner v. Alabama Farm Bureau Federation

• Decision Date: 06 October 1932
• Docket Number: 3 Div. 15.
• Citation: 225 Ala. 513,143 So. 909
• Parties: WAGNER v. ALABAMA FARM BUREAU FEDERATION.
• Court: Alabama Supreme Court

143 So. 909

225 Ala. 513

WAGNER v. ALABAMA FARM BUREAU FEDERATION.

3 Div. 15.

Supreme Court of Alabama

October 6, 1932

Rehearing Denied Nov. 3, 1932.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action by H. L. Wagner against the Alabama Farm Bureau Federation. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Ball &amp Ball, of Montgomery and Mark V. Weatherford, of Albany, Or for appellant.

Goodwyn & Goodwyn and Hill, Hill, Whiting, Thomas & Rives, all of Montgomery, for appellee.

THOMAS J.

The suit was on a contract and resulted in judgment for defendant.

The appeal is from a judgment of nonsuit suffered by the plaintiff as a consequence of the action of the trial court sustaining demurrers to the complaint.

Count 1 alleges that in the year 1930, plaintiff, H. L. Wagner, as seller, and defendant, Alabama Farm Bureau Federation, as buyer, entered into a contract by which the plaintiff agreed to sell and defendant agreed to buy all of the Austrian winter peas grown by plaintiff, seller, on 1,000 acres during the season 1930-31; that thereafter plaintiff and defendant modified said contract by written amendment as follows:

"This amendment to the contract made by and between H. L. Wagner and the Alabama Farm Bureau is as follows:

"The Alabama Farm Bureau agree to buy and H. L. Wagner agrees to sell all the available Austrian peas up to one million two hundred and fifty thousand pounds at three dollars and seventy five cents ($3.75) f. o. b. cars or truck as ordered by buyers. That instead of the price being $3.85 as mentioned in the contract it is to be reduced to $3.75 for the entire available tonnage up to above amount. Terms and quality and all other agreements to remain same as contract."

It is further averred that plaintiff on his part fully performed the contract and amendment thereof; that pursuant thereto there became available at the time and place provided in said contract, and "there was appropriated to said contract by plaintiff 1,250,000 pounds of said peas, cleaned and inspected and in all respects as specified in said contract, of all of which defendant had notice; that 923,000 pounds of said peas were ordered shipped by plaintiff under defendant's instructions, and were shipped and accepted by defendant, but defendant, although often requested, has without just cause refused to give plaintiff shipping instructions for the remaining 326,700 pounds of peas or any part thereof, and although plaintiff duly offered to ship said peas, the defendant on, to-wit, September 25th, refused to accept said peas."

The original contract is made an exhibit to the count. By its terms the seller agreed to duly prepare, or cause to be prepared, and seed to Austrian peas 1,000 acres in the state of Oregon; to care for and harvest said crop during said season; and load for shipment as stipulated to the buyer as instructed by the buyer, packed in the manner designated. Terms are stated in the contract to be "sight draft bill of lading attached, together with invoice and a certificate of inspection, cash on arrival of documents at Montgomery, Alabama." It is further provided that: "Cleaning is to be done not later than August 15th, 1931; *** that he," the seller, "will load said seed crop for shipment so that the first shipment will be not later than August 15, 1931." There are in said contract further stipulations as to quality and provisions for inspection, shipment, and notice of shipment. It is further "understood and agreed that the seller will have several hundred acres of said seed in addition to that provided for in this contract," and the buyer is given an option to purchase such additional crop under the same terms and conditions; such option to be exercised before midnight of June 1, 1931.

The argument against this count, as raised by the demurrer, is twofold: First, that the word "available," as employed in the amended contract, referred alike to the seller and the buyer; witnessing an intention on the part of the seller to sell such peas as he could procure, and the intention of the buyer to purchase only such peas as it required, the figure "up to one million two hundred and fifty thousand pounds" being merely an estimate of the buyer. Second, that if the word "available" be held to apply to the seller alone, the amended contract is rendered indefinite and uncertain as to its subject-matter, and makes it incapable of enforcement; that is to say, that the amended contract is unilateral.

The action of the parties in materially amending or modifying their contract will be ascribed to a rational purpose indicated by its terms. By the original contract the plaintiff agreed to sell, and defendant to buy, the yield of 1,000 acres at a stipulated price of $3.85 per hundred pounds, f. o. b. seller's shipping point, etc., and the aggregate amount of the yield did not enter; much or little, the plaintiff agreed to sell, and the defendant agreed to buy, all the Austrian winter peas grown, or caused to be grown, by the seller on the acreage designated during the season 1930-31 of the grade and percentage of "minimum germination." There is no reference made in the original contract to the buyer's (defendant's) requirements. Its requirements were, or at least, per the contract in excess of the yield of 1,000 acres indicated. The option granted to it to purchase the crop yield of such seed from an additional acreage, on the same terms, is consistent alone with such an intention. If, then, the parties had any rational and lawful purpose in entering into the new agreement, by the terms of which the price was reduced on Austrian peas "up to one million two hundred and fifty thousand pounds at three dollars and seventy five cents ($3.75) f. o. b. cars or truck as ordered by buyers, that instead of the price being $3.85 as mentioned in the contract it is to be reduced to $3.75 for the entire available tonnage up to the above amount," its purpose must have been to sell and to buy yet additional seed up to 1,250,000 pounds. Plaintiff having surrendered and defendant having secured respective and material advantages under this amended contract, namely, by defendant a reduction in price, some moving and in a way counterbalancing benefit to the plaintiff must be sought. That is found in the further obligation of the defendant to take all of plaintiff's available supply of peas up to 1,250,000 pounds. The reasonable construction to be placed upon the contract so modified is, we hold, that the word "available," as used in the amended contract, meant procurable by plaintiff and capable of being appropriated to this contract within its terms.

Thus we are brought to the second phase or group of grounds of demurrer, that the contract is unilateral and wanting in mutuality.

In American Tie & Timber Co. v. Naylor Lumber Company, 190 Ala. 319, 322, 323, 67 So. 246, 247, this court had under consideration an unexecuted contract by which the purchaser had agreed to take, and the seller to deliver, "as many heart cross-ties as it is possible for them," the seller to deliver "at Moss Point, for twelve months from the above time" at prices specified. It was there held that such contract was not sufficiently certain as the basis of an action for its breach, it being shown that the quantity of cross-ties which might be thus accumulated depended on uncertain elements and material contingencies, and arbitrary action of the parties. The breach asserted was that the purchaser, at a time when the seller stood ready, able, and willing, and offering to carry out the provisions of the contract, "notified the seller that it would no longer carry out the provisions of said contract," and refused to do so and accept other cross-ties.

The court said: "This agreement is readily distinguishable from those...