Rosengrant v. Finklea

THOMAS, J. The suit was for damages for the breach of a contract for the sale of lumber, and .was tried without a jury. There were four counts in the complaint, and demurrers . thereto were overruled. The plea of the general issue and several special pleas were interposed. Plaintiff filed general and special replications to the special pleas. The effect of the several counts was that plaintiff performed a portion of the contract within the time stipulated, was ready, able, and willing and offered to complete the contract within the time and according to its terms, and that defendants refused, within that time, to accept performance. The allegation of offer of performance was to deliver the lumber per contract terms, “f. o. b., cars at Corduroy, Ala.” No other place is mentioned in the complaint, and the fact that plaintiff was able, ready, and willing to deliver was fully discharged by the averment that he “offered then and there to deliver the balance of said lumber.” When the count as a whole is considered, it meant, and could only mean, that delivery would be made f. o. b. cars at Corduroy. So, also, of the averments of time of delivery. Lysle Mill. Co. v. North. Ala. Gro. Co., 201 Ala. 222, 224, 77 South. 748; S. S. S. & I. Co. v. Payne, 192 Ala. 69, 68 South. 359; McCormick v. Badham, 191 Ala. 339, 67 South. 609; Terrell v. Nelson, 177 Ala. 596, 58 South. 989; Elliott v. Howison, 146 Ala. 568, 40 South. 1018; Covington Co. v. Ferguson, 204 Ala. 192, 85 South. 726; May Hosiery Mills v. Munford Cotton Mills, 205 Ala. 27, 87 South. 674. So of the refusal to permit plaintiff to deliver on cars the balance of the lumber. The foregoing authorities are not to the contrary. All that is required of the averment and proof of a breach of a contract is that “the breach complained of be substantially set forth and substantially proved”; that it be sufficient to give the nature or character of the breach so as to inform the defendant what he is expected to defend; and this may be done in general terms as we have indicated. Woodward Iron Co. v. Frazier, 190 Ala. 305, 307, 67 South. 430; Pratt Con. Coal Co. v. Vintson, 204 Ala. 185, 85 South. 502; Tutwiler v. Burns, 160 Ala. 386, 49 South. 455; Smith v. Davis, 150 Ala. 106, 111, 43 South. 729. Counts 1, 2, 3, and 4 were free from demurrers assigned thereto. Duffey v. Sou. Mfg. Co., 207 Ala. 369, 92 South. 545. There was no error in declining to admit in evidence the letter by one of defendants of June 14, 1920, after the alleged breach of contract by defendants, by failure to receive lumber f. o. b. cars at Corduroy. Plaintiff was obligated to deliver “as soon *404 as possible” tbe lumber at tbe place indicated by contract. This being done, defendants refused to permit plaintiff to deliver the same on board cars, but alongside the cars; the fact that thereafter a portion of the lumber so delivered was removed by some one, not indicated as being plaintiff or its agents, gave no right of revocation of the whole contract and as to other lumber. Moreover, so far as disclosed by the record, the letter, though dated earlier, may have been received by plaintiff after he had attempted to minimize his damage caused by defendants’ breach in refusing to take and pay for lumber per contract by its sale to Ivey & Co. The breach of the contract was concurrent with the failure to accept the lumber per contract stipulations, f. o. b. cars at Corduroy, within a reasonable time. And the evidence showed the delivery or offer of delivery was within such time. The judgment of the court was supported by the evidence. Plaintiff had hauled and delivered and sought to deliver, f. o. b. cars at Corduroy, 141,000 feet of lumber when defendants’ agents stopped him from delivering 14,000 feet of lumber, or the balance thereof. The failure of defendants to take the lumber and pay for same per contract terms relieved plaintiff of the duty of actually delivering the balance of the lumber after its receipt was declined by defendants. As to the balance, it was shown that he was ready, able, and willing to perform. So, also, plaintiff was not required to proceed with tender of the other-lumber or of other specifications. The declination to receive relieved plaintiff to do more than show that he was ready, able, and willing to comply with .his contract. Lysle Mill. Co. v. North. Ala. Gro. Co., supra. The defendants having refused to accept delivery within the stipulated contract time, plaintiff could have treated this as a breach in the first instance; the fact that further time was requested and given for completion of delivery of the whole amount of lumber did not absolve defendants of their duty to take the lumber as agreed on.' The fact remained that defendants’ first refusal to accept deliveries f. o. b. cars at Corduroy was adhered to. Such was the effect of the conduct of defendants that it amounted to a continuous refusal to accept that constituted a breach of contract proximately resulting in plaintiff’s damages, for which judgment was rendered by the trial court, who saw and heard the witnesses. Affirmed. ANDERSON, C. X, and McCLELLAN and SOMERVILLE, JX, concur.