Worthington v. Given

• Court: Alabama Supreme Court
• Writing for the Court: BRICKELL, C.J. PER CURIAM.
• Citation: Worthington v. Given, 119 Ala. 44, 24 So. 739 (Ala. 1898)
• Decision Date: 05 November 1898
• Parties: WORTHINGTON ET AL. v. GIVEN.

24 So. 739

119 Ala. 44

WORTHINGTON ET AL. v. GIVEN.

Supreme Court of Alabama

November 5, 1898

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by M. M. Given against J. W. Worthington & Co. Judgment for plaintiff, and defendants appeal. Affirmed.

This action was brought to recover damages for the breach of an agreement which was entered into by the defendants with one Thomas H. Dunn on August 25, 1892, and was transferred by said Dunn to the plaintiff on December 30, 1892. The substance of this agreement is stated in the opinion.

In the first count of the complaint, the breaches complained of were alleged as follows: "Defendants wrongfully breached said agreement in this, namely, that heretofore, on, to wit, 21st day of May, 1895, defendants ordered plaintiff to cease mining ore under said agreement. Defendants further breached said agreement in this, viz. defendants refused or neglected to pay plaintiff for a large amount of ore mined under said agreement after same became due by the terms of said agreement. Defendants further breached said agreement in this, viz. they caused the railroad company not to furnish the plaintiff with cars on which to load ore mined and to be mined under said agreement. Defendants further breached said agreement in this, viz. they refused or neglected to furnish plaintiff with cars on which to load ore under said agreement. Defendants further breached said agreement in this, viz. defendants neglected or refused to furnish what rails plaintiff needed for delivering ore on board of cars. Plaintiff was ready and willing to perform all the provisions of said agreement on his part, and did comply with all said provisions so far and so long as defendants would allow him to do. Defendants wrongfully prevented plaintiff from continuing to carry out the provisions of said agreement on plaintiff's part as aforesaid. In consequence of said breaches of said agreement and said wrong on defendants' part, plaintiff suffered great loss and damage, and was put to great expense and trouble, as follows: He was compelled to purchase a large quantity of rails, tools, implements, and fixtures in and about carrying out said agreement. And plaintiff suffered great loss of profits he would have made had he been allowed to carry out said contract." There were two other counts of the complaint, claiming respectively, $10,000, due by account and for money had and received. Defendants moved to strike out from plaintiff's complaint the averment that defendants breached said contract in that they caused the railroad not to furnish plaintiff with cars in which to load ore, because said action on the part of defendants, if true, would not constitute a breach of the contract described in the complaint and sued upon. Defendants also moved to strike from plaintiff's complaint the averment that plaintiff was compelled to purchase a large quantity of tools, implements, and fixtures because, if such averment be true, it would not entitle plaintiff to recover damages under the contract sued upon. The defendants pleaded the general issue, and the following special plea: "For further answer to the first count of said complaint defendants say that plaintiff failed to mine said ore and put it on board the cars free of foreign substance, and in a manner satisfactory to the furnace company receiving the same." The plaintiff moved the court to strike from the said plea the averment "that the ore was not mined free from foreign substance, and in a manner satisfactory to the furnace company receiving the same," on the ground that, if said averments were true it constituted no excuse for the defendants' refusing to receive any more ore or for the defendants' breach of the contract. This motion was overruled. The plaintiff demurred to the second plea upon the ground that it constituted no answer to the complaint, and, upon this demurrer being overruled, the plaintiff filed the following replications "(1) Comes plaintiff, and, for reply to defendants' first plea, takes issue thereon. (2) For reply to defendants' second plea, plaintiff takes issue thereon. (3) For further reply to defendants' second plea plaintiff says that plaintiff mined ore under said agreement or contract for a long time, to wit, twelve months, during which time plaintiff mined and delivered to defendants a large quantity of ore, to wit, eighteen thousand tons, and defendants received and paid for nearly all of said ore without complaint of any kind except as to a very small quantity of said ore. At or near the commencement of the said time that plaintiff was mining as aforesaid there was some complaint as to one car of ore, and as to that car plaintiff did not receive pay, but continued to mine ore, and deliver same to defendants, and receive pay for same, without complaint, for a long time, when further complaint was made; but plaintiff was at all times ready and willing to mine and deliver said ore according to said contract, and to rectify any mistake or failure on their part, and was ready and willing to deliver to defendants as provided in said contract, but for the fact that defendants notified plaintiff that defendants would receive no more ore under the said contract." To the third replication the defendants demurred upon the following grounds: "(1) Said replication merely amounts to a general replication. (2) Said replication constitutes no answer to defendants' plea. (3) Said replication does not deny the averments of defendants' said plea, nor does it confess said averments, and aver facts sufficient to avoid them. (4) Although said replication avers that plaintiff was ready and willing to mine and deliver said ore according to said contract, and to rectify any mistake or failure on their part, yet said replication fails to show that plaintiff did not violate the contract as set down in defendants' second plea and that defendants did not lawfully cancel said contract on account of plaintiff's said breach. (5) It does not appear from said replication that after the further complaint was made by defendants, that plaintiff ever offered to deliver defendants ore mined free from foreign substance, and satisfactory to the furnace company receiving the same." This demurrer was overruled, and the defendants duly excepted. Issue was joined upon the pleadings. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Upon the introduction of all the evidence the court gave his general oral charge to the jury, and the defendants separately excepted to the following portions of said charge: (a) "The plaintiff had a right to mine the outcrop ore in the territory, all of it, and, if he mined outside of it, and didn't mine all that was in it, though he mined outside, that which he mined outside couldn't be used to counterbalance that which he didn't mine on the inside, and deprive him of the right to mine that which was actually on the inside of the limits, as they in reality were." (b) "Under the contract the plaintiff was entitled to go back to a face of 15 feet. He was entitled to mine all along the line of his territory until he came to a face of 15 feet. If in one place he mined back to a face of 20 feet, and at another place he mined back to a distance of only 13 feet, the matter of excess of territory that he mined which he had no authority to mine under the contract isn't in controversy in this case, and he would have a right to mine that 13 feet back to a face of 15 feet." (c) "If the plaintiff mined the ore free from foreign substance, and satisfactory to the furnace company, and in the matter of comparatively few cars it was unsatisfactory, or contained foreign substance, then, because he sent in those cars, the defendants would not have a right to terminate the contract, but they would have a right to reject that ore and not pay for it, if the plaintiff insisted thereafter upon sending cars of ore that would fulfill the requirements of the contract." (d) "The contract sued on is what is known as a 'continuing contract,'-that is to say, one duty was to be performed at one time by the plaintiff, and then another duty (the payment) was to be performed by the other parties, and that thing was to go on from time to time; and simply because there was a failure of duty on the part of one party or the other at one time, or two times, or several times in this continuing contract, the other party would not be justified in entirely breaking the contract on that account." (e) "That 'satisfactory to the furnace company' means such ore as should be considered by the furnace company as reasonably adapted for the purpose for which they wished to use it. It was left to the furnace company to say what ore was satisfactory, and it was not satisfactory whenever they pronounced the ore unsatisfactory; or if they, in good faith, said it was unsatisfactory, it was unsatisfactory, because whether the ore was satisfactory was necessarily left to the furnace company." (f) "But if it was only a few cars of unsatisfactory ore, or bad ore, and there was evidently an intention on the part of the plaintiff to thereafter, after he was notified to quit, to furnish ore that would come up to the specifications of the contract, then he should have been permitted to have gone on and furnished such ore under the contract; and, if the defendants failed to let him do it, then they would be liable for the consequent damages."

The court, at the request of the plaintiff, gave to the jury the following written charges: (1) "If the jury believe from the evidence that defendants stopped plaintiff from work, and prevented him from carrying out the contract on his part then, before such action can be justified on the ground...