McKinney v. Baker

THOMAS, J. The contract of sale made over the telephone and the subject-matter thereof were within Madison county. The delivery and payment were consummated at Gurley. The evidence of plaintiff tended to show the warranty as alleged in the complaint; that for defendant to the contrary: That the hogs were purchased by plaintiff after he had inspected 'them. In the absence of evidence that the defendant knew when the sale was made or consummated that the hogs were purchased for shipment and resale on the Louisville market, the evidence of the market value thereof would be confined to that of the time and place of delivery, if they had a market value at such place. J. H. Burton & Sons Co. v. May (Ala. Sup.) 103 So. 46; 1 Cato v. Williamson, 209 Ala. 477, 96 So. 321; McAnelly Hdwe. Co. v. Bemis Bros. Bag Co., 208 Ala. 394. 94 So. 567; Attalla Oil & Fertilizer Co. v. Goddard, 207 Ala. 287, 92 So. 794; Zimmern v. Southern Ry. Co., 207 Ala. 169, 92 So. 437; May Hosiery Mills v. Munford Cotton Mills, 205 Ala. 27, 87 So. 674; Georgia Cotton Oil Co. v. Carlisle Seed Co., 200 Ala. 226, 75 So. 984; Crandall-Pettee Co. v. Jebeles & Colias Conf. Co., 195 Ala. 152, 69 So. 964; Gwin v. Hopkinsville Milling Co., 190 Ala. 346, 67 So. 382; Johnson v. Allen, 78 Ala. 387, 56 Am. Rep. 34. And the evidence shows the hogs had a market value at the time and place of delivery. The controverted question of fact is whether there was evidence in support of the third count of the complaint, seeking to make a case within the recognized exception to the general rule to which we have averted. Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52; Johnson v. Allen, 78 Ala. 387, 56 Am. Rep. 34; Alabama Iron Works v. Hurley, 86 Ala. 217, 5 So. 418. The exception to the general rule is noted in Attalla Oil & Fertilizer Co. v. Goddard, 207 Ala. 287, 289, 92 So. 794, and in Cato v. Williamson, 209 Ala. 477, 478, 96 So. 321. Under the circumstances within the exception, the express or implied intention of the parties is that the special damages resulting are sanctioned as elements of injury as the result of a breach of the contract. Johnson v. Allen, supra; Daughtery v. American U. Tel. Co., 75 Ala. 168, 51 Am. Rep. 435; Snow v. Schomacker, 69 Ala. 111, 118, 44 Am. Rep. 509; , Franklin Motor Car Co. v. Ratliff, 207 Ala. 341, 92 So. *492 449; Dothan Ohero-Cola Bottling Co. v. Weeks, 16 Ala. App. 639, 80 So. 734. The knowledge of the special purpose of the purchase when the contract was made and the special damages resulting from the breach are sufficiently-stated in count 3. Certain of the testimony of Montgomery, Oldham, and other witnesses related to the difference in price of “hard” and “soft" hogs in the Louisville market; that is, the difference in the market price of hogs that had been “corn fattened” and hogs that had not been so fattened. Plaintiff’s witness Baker testified of market value of hogs in Madison county and of the specific terms of his contract of purchase, the receipt, delivery, and reshipment, payment therefor by check bearing evidence of the terms of purchase — “Carload corn fat hogs guaranteed.” He further testified that when he gave defendant the check at Gurley, when he was there “weighing up the hogs,” he “told the defendant that” he “was shipping them to Louisville”; that “Mr. Mc-Kelvey had just gotten the market from Louisville” ; that he and his partner (McKelvey) discussed the fact of the two or three cents difference in favor of “corn fed hogs”; that after witness’ conversation with his partner he came “back to the defendant and told him what McKelvey had'told” him “over the phone”; and witness stated that he had replied to his partner that he would not hold back a part of the purchase price as a guaranty — that he “knew who” he “was dealing with,” one who “was worth the money,” who could make good the guaranty. Witness denied that defendant replied to him: “If you are dissatisfied with your trade, put them back in the pen.” The witness again stated on re-examination: “After I had had my conversation with Mc-Kelvey, and had come back to where the defendant was, I told him that McKelvey had just received the market and advised me to hold back as much as three cents a pound on the hogs in case, they were soft, and that I had told him I knew who I was dealing with; that he was worth the money, and that I would state in the check that it was ‘for corn fat hogs.’ ” The evidence showed that defendant saw plaintiff load the hogs on cars at Gurley, and knew they were being weighed for shipment to Louisville. There was no error in admitting in evidence the fact that there was $2 difference in the market value between “hard” and “soft” hogs at the several points covered by the witness (at Louisville or in Madison county), and as applied to notice or knowledge of special use. 52 L. R. A. 209, 217, 218. We find no reversible error. Affirmed. • ANDERSON, O. X, and SOMERVILLE and BOULDIN, XL, concur. Footnotes [1] Ante, p. 435.