Williams v. W. M. Hardee & Son
| Decision Date | 16 November 1925 |
| Docket Number | 25018 |
| Citation | 106 So. 17,140 Miss. 155 |
| Parties | WILLIAMS v. W. M. HARDEE & SON. [*] |
| Court | Mississippi Supreme Court |
1 CONTRACTS. Contract held not unilateral and without consideration.
Contract in form of certificate, signed by W., that he agrees to deliver cotton to H. at a certain time and price, is not open to objection of being unilateral and without consideration H.'s signature being below under the same date and the word "accepted."
2 SALES. Contract need not give weight of bales of cotton.
Contract for sale of bales of cotton need not give their weight; the standard weight of five hundred, of which, as common knowledge, judicial notice is taken, being implied.
3 EVIDENCE. Market value of cotton at certain time and place held for jury on evidence of its sale price a few miles away; judicial notice taken of what is common knowledge among cotton trade as to prices of cotton.
Market value of cotton at a certain time is sufficiently shown to go to the jury by positive testimony of the price at which it then sold at a market place a few miles distant; judicial notice being taken of what is common knowledge among the cotton trade, that the prices of the various grades and staples of short staple cotton, at any time, are substantially the same for each all over the cotton belt, differences in freight alone considered.
4. SALES. Demand or tender not necessary for action for breach of contract, where goods are to be delivered at particular time and place and then paid for.
It is not necessary for buyer, before bringing action for breach of contract to sell, to demand the goods or tender price, where goods are to be delivered at a particular time and place and to be paid for on delivery.
5. EVIDENCE. Place of delivery, as to which written contract is silent, provable by parol.
Where written contract for sale and delivery of goods is silent as to place of delivery, it may be shown by parol.
6. SALES. Place, as well as time, for delivery held fixed, so that seller was in default in not making tender.
Though contract for sale and delivery expressly set out only time for delivery, place of delivery is sufficiently fixed as buyer's place of business in the town in which both parties do business so as to put seller in default for not tendering delivery there of the balance of the cotton sold, by evidence that the parties treated that as the place of delivery; the part of the cotton which was delivered having been there delivered.
APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.
Action by W. M. Hardee & Son against R. F. Williams. Judgment for plaintiffs, and defendant appeals. Affirmed.
See, also, 106 So. 16.
Affirmed.
Jeff Collins, for appellant.
I. We desire, first, to discuss overruling of the demurrer filed by the defendant to the declaration in this case, and call the court's attention to the alleged contract, which, we say, shows on its face that it was without consideration, and being without consideration, was, therefore, unenforceable. Again, the contract was unilateral and, therefore, unenforceable.
II. Before the trial court would be warranted in giving a peremptory instruction for the plaintiff in this case, plaintiff must have had made out a case, the testimony being construed most strongly against him, with proof to a reasonable certainty.
So we submit that the following facts have to be proved with reasonable certainty; namely: (1) the amount of cotton to be delivered, (2) the amount of cotton delivered, (3) the contract price, (4) the market price, (5) a demand upon the defendant by the plaintiff for the difference, (7) the actual profit or actual loss for non-delivery.
The plaintiff said that the defendant was due him two thousand eight hundred twenty-four pounds of cotton based upon the average weight of five hundred pounds per bale. We submit that the written contract is the best evidence of the amount of cotton to be delivered, and there is no reference in the contract anywhere as to how many pounds were to be considered as a bale, and there is no law that we know of fixing the average weight of a bale of cotton. And if there is no law fixing the average weight of the bales of cotton and nothing in the contract with reference to the average weight of the bales of cotton, then the plaintiff's reference to five hundred pounds for his calculation as to two thousand eight hundred twenty-four pounds, which he said was the balance due, was not justified under the contract. So we submit that the testimony with reference to the amount of cotton to be delivered is so uncertain that a verdict cannot be based upon it.
As to the amount of cotton delivered, the testimony shows that three bales of one thousand one hundred seventy-six pounds were delivered and accepted upon this contract. Those three bales weighed less than five hundred pounds each, but they were called bales of cotton notwithstanding. If the average weight of these three bales should be taken as a criterion by which to figure the amount due, then the judgment would be far less than one hundred eighty-one dollars and sixty-four cents, if the other elements necessary to be proved had been proved. But the court gave the peremptory instruction for one hundred eighty-one dollars and sixty-four cents.
The plaintiff based his right of recovery upon the proposition that he was entitled to the difference in value between twenty-five cents per pound on seven bales of cotton and the market value of "middling cotton" on October 31. The plaintiff, himself, was unable to testify what was the market value of the cotton on October 31, and so stated in the record that he did not know. And search the record as you may and you will not find any testimony at all with reference to the market value of cotton either at Meridian or Sandersville. 24 R. C. L., sec. 390, page 120.
It is our contention that the burden was on the plaintiff in this case to prove the market value of cotton at Sandersville and Meridian since the contract fixes the place of delivery and fixes the place where the market value is to be determined. If the plaintiff failed to prove the market value at the place designated in the contract, then he failed to make his case. We most respectfully submit that the plaintiff has failed to make out his case with reference to what the market value of cotton was at the time and place of delivery.
See 35 Cyc., page 624, 35 Cyc., page 620, 24 R. C. L., section 334, page 69.
The burden is on the plaintiff to prove the grade of cotton to be delivered, and we respectfully submit that there is no testimony in the record whatever with reference to the market of any kind of cotton below middling, while the contract says that the defendant may deliver "below middling on the Meridian market."
If plaintiff has proved the allegations of his declaration so as to entitle him to a verdict, then we fail to find the record of it, and we believe that this court will so see the case.
Shannon & Schauber, for appellee.
I. We do not think there is any question under the decisions of this court but that the court will hold that the contract in this case is a good contract with a valid consideration. The contract states the grade of cotton to be delivered, when it is to be delivered, where it is to be delivered, the amount of cotton to be delivered, and the price to be paid for the same. This contract is signed by R. F. Williams, the appellant, and shows that it was accepted by W. M. Hardee & Son. It was dated March 27, 1923, Sandersville, Jones county, Mississippi, and shows that it was witnessed by L. J. Hayman.
There is no ambiguity about this contract. It is a straight, clear-cut contract wherein one party, R. F. Williams, agrees to deliver ten bales of cotton by a specified time, of a specified grade, at a specified price, being twenty cents per pound, and the other party, W. M. Hardee & Son, agrees to pay for the same at twenty-five cents per pound.
Counsel for appellant seems to think there is some doubt as to the amount of cotton which should be delivered under the terms of this contract. It is a matter of common knowledge, and is testified to in this case, that five hundred pounds is accepted among all cotton men and cotton raisers as a standard weight bale. There can be no question about this. Counsel for appellant also seem to think that the appellee did not fix the price of the cotton at Sandersville, Mississippi, but see the testimony of W. M. Hardee. The price of middling cotton on October 31, 1923, was twenty-nine and three-fourths cents per pound in Laurel, Mississippi. We think this unquestionably fixes the market value of cotton on that date under the terms of this contract. We think, however, as stated above, that this is a valid contract, and that the testimony has established the same. Willis v. Ellis, 98 Miss. 197.
We do not think there is any question as to the sufficiency of the consideration in this contract, but see Miller v. Bank of Holly Springs, 95 So. 129.
II. What is the plaintiff entitled to recover under this contract? The appellant delivered only three small bales, weighing only eleven hundred and ninety-six pounds. He should have delivered thirty-eight hundred and twenty-four pounds more. The record shows that the market value on that date was twenty-nine and three-fourth cents per pound. The record also shows that the standard weight of a bale of cotton is five hundred pounds.
The...
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