Ward v. Cotton Seed Products Co.

• Decision Date: 13 May 1915
• Docket Number: 577
• Parties: WARD v. COTTON SEED PRODUCTS CO.
• Court: Alabama Supreme Court

69 So. 514

193 Ala. 101

WARD v. COTTON SEED PRODUCTS CO.

No. 577

Supreme Court of Alabama

May 13, 1915

Rehearing Denied June 30, 1915

Appeal from Circuit Court, Elmore County; W.W. Pearson, Judge.

Action by the Cotton Seed Products Company against S.J. Ward. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

J.M Holley and George F. Smoot, both of Wetumpka, for appellant.

Ivey F Lewis, of Birmingham, for appellee.

GARDNER J.

Suit by appellee against the appellant for the recovery of damages growing out of the breach of a contract for the sale of three cars of cotton seed, which was agreed by the appellant to be sold to the appellee at the price, fixed in the contract, of $22 per ton, f.o.b. Wetumpka, Ala. One car of cotton seed having been sold and delivered under the contract, the complainant seeks damages for a failure and refusal on the part of defendant to sell and deliver the two remaining cars. Judgment was for the plaintiff, from which the defendant prosecutes this appeal. There were demurrers to the complaint, which were overruled, and this action of the court constitutes assignments of error 9 and 10. These assignments however, are not argued in brief of counsel for appellant, and are therefore considered as waived.

The evidence for the plaintiff went to show that through its agent a contract was entered into between it and the defendant on November 7, 1912, for the purchase by the plaintiff from defendant of 3 cars of cotton seed at the price of $22 per ton, f.o.b. Wetumpka. Among other things provided by the contract was the stipulation that the weights of the Cotton Seed Products Company, of Louisville, Ky., should govern all settlements. The contract was in writing, and provided that shipment was to be made to Nashville, Tenn. However, when the first car load was shipped by defendant, he was requested by the plaintiff to have the shipment changed from Nashville to the plaintiff's place of business at Louisville, Ky., which was done, and the cars of seed paid for by the plaintiff. The contract was signed as follows:

"S.J. Ward, Seller's Signature B The Cotton-Seed Products Co. By J.R. Hale & Sons McGavock."

Aside from the plea of the general issue the defendant interposed a special plea, duly sworn to, denying that the contract was executed by him, or by any one authorized to bind him in the premises. The evidence for the plaintiff was without dispute; the defendant himself not testifying or offering the testimony of witnesses. It was shown by the plaintiff's agent that he made the contract for the sale of the cotton seed with the defendant himself, and that one Brown was present; and other testimony went to show that Brown was in the employ of defendant, at the time, at his ginnery at Wetumpka; and there was evidence that Brown had issued cotton seed tickets during that fall, signing the defendant's name over his own signature, some of the tickets being signed, "S.J. Ward, Charles Brown, Weigher," and that the said Brown purchased seed for the defendant when it was brought to the gin, issuing the tickets as previously stated. The agent of the plaintiff at the time of the execution of this contract reached the agreement with the defendant at his gin, Brown being present; and when the trade was finally consummated, and the contract ready to be signed, Brown took it and signed the name of the defendant thereto, and, in the language of the witness, defendant "stood there and saw him do it."

Subsequently one car load of the seed was shipped, for which defendant received payment. A letter of defendant was offered in evidence in regard to said car, and several letters, urging shipment of the other two cars, were also shown to have been written to the defendant, to which he made no reply. On December 13th the agent of the plaintiff went to the home of defendant to inquire what he meant to do about shipping the two other cars of seed, to which he replied that he was "not going to ship them."

We are of the opinion that it is too clear for argument that the evidence was sufficient to warrant the submission to the jury of the question of the authority of Brown to execute the contract sued on in this case. Buist v. Guice, 96 Ala. 255, 11 So. 280; Patterson v. Neal, 135 Ala. 477, 33 So. 39; 31 Cyc. 1263-1349.

The generally recognized rule is that, where no time is fixed for the delivery of goods, the law presumes that they were to be delivered within a reasonable time, and that in cases of this character the measure of damages is the difference between the agreed price and the market value of the goods at the time and place of delivery, with interest. 2 Mechem, Sales, § 1736; Buist v. Guice, supra; Cawthon v. Lusk Co., 97 Ala. 674, 11 So. 731; Johnson & Thornton v. Allen & Jemison, 78 Ala. 387, 56 Am.Rep. 34; 35 Cyc. 633; 17 Dec.Dig. § 418.

It has been held, also, that where no time is fixed in the instrument for the completion of the contract--that is, for the delivery of the goods--damages may be calculated from the period at which the defendant refused to perform it. 2 Mechem, § 1748; Williams v. Woods, 16 Md. 220. As said by the authorities, such a refusal on his part leaves no further locus poenitentiae to himself, and of course the plaintiff cannot treat the agreement as longer subsisting.

As previously stated, upon inquiry by the plaintiff's agent on December 13th, the defendant positively declined to furnish the seed, whereupon plaintiff bought in the open market two cars of...