Maas & Schwarz v. Montgomery Iron Works

CLOPTON, J. -The plea of the statute of frauds having been abandoned, the general issue and the failure of consideration are the only pleas filed to the action, which was brought by the appellee to recover the price of an engine and boiler shipped to W. J. Stoddard at the request of appellants. The presiding judge, to whose decision the facts were submitted without the intervention of a jury, found there had been a compliance on the part of the plaintiff with the agreement with Stoddard to put the engine and boiler, which were second-hand, in good running order. Notwithstanding the testimony may be regarded conflicting in some respects, on consideration of the entire evidence, we concur in this conclusion. Plaintiff sent a competent machinist to put up the machinery, who testifies that he had no difficulty in running it, and left it in good condition. A short time afterwards, the person placed in charge by Stoddard attempted to run it and to gin cotton, without succeeding in getting the inspirator to work so as to force sufficient water in the boiler. The person operating it attempted to fix it, and was stopped by Stoddard, because, as he says, he did not appear to understand it, and something wrong might be done. A machinist, who was sent for by him, examined the machinery, found the boiler leaking, did some work on the engine, such as fixing connecting rod brasses, and some packing and tightening bolts, but refused to do any on the boiler. After [327] this it was used for some time. Stoddard still not being satisfied,plaintiff sent another machinist, who worked on the engine and boiler. They were thereafter used to gin, not only the crop of that year — 1886—but also the crop of the two succeeding years, without any repairing, so far as shown, except to put in new tubes in 1888. After two crops had been ginned, plaintiff proposed to take the machinery back, release Stoddard and the defendants, and remove it without expense to them or either of them. This proposition was rejected. Its rejection, and the long use of the engine and boiler, manifest that plaintiff had put them in a condition reasonably suitable to the purposes for which they were purchased. Though there is some testimony tending to show that the engine had not been run sufficiently long after it was first put up to produce injury, the inference from the entire evidence is, that the subsequent leaking and the defective working of the inspirator were caused by inexperienced and unskillful handling on the part of the persons placed in charge, who did not understand how to operate an engine; or, at any rate, that the last machinist sent by plaintiff put the engine and boiler in good running order. The correspondence set forth in the bill of exceptions constitutes the contract between plaintiff and defendants. Stoddard proposed to purchase, and plaintiff to sell the engine and boiler, at two hundred and fifty dollars, agreeing to put them in good running order. The price was agreed on, but plaintiff declined to sell on his responsibility, and required security for the purchase-money. A few days thereafter, defendants proposed in writing to give their acceptance payable at ninety days, if the engine and boiler were fully guaranteed. On being notified that the proposition was accepted, .and that the machinery would be ready for shipment on the succeeding Monday, defendants wrote: “ You can make him (Stoddard) the shipment, comply with your contract with him, and the paper will be forthcoming.” Plaintiff shipped and put in place the engine and boiler, and so informed defendants, requesting them to make out the acceptance as of October 4, 1886, the time when the machinery was ready for work. The acceptance was never given. Counsel insist that defendants committed no breach of their agreement, though there was a compliance on the part of plaintiff. The argument is, that the contract, when properly construed, was to accept the draft of Stoddard, and that presentation of the draft for acceptance, in a reasonable time, [328] is essential to constitute a breach of such agreement. This is the general rule, in the usual cases of agreements to accept a draft drawn or to be drawn. But the contract was not merely to accept the draft of Stoddard, or any other particular draft. Defendants were his commission-merchants. Occupying this position, and being necessarily interested in having the crop of cotton ginned, they proposed, in order to enable him to obtain the engine and boiler for this purpose, to give their acceptance for the agreed price, and promised, if plaintiff complied with the contract with Stoddard, that the paper should be forthcoming. The terms of the agreement imposed on defendants the duty to furnish the acceptance on plaintiff’s compliance with the contract — the same as if they had agreed to give their promissory note. It is further contended, that though there may have been a breach of the agreement, plaintiff can not recover on the complaint, there being no count declaring on the special contract. The complaint contains only two common counts-one for goods sold to defendants, and the other for goods sold to Stoddard at their request. The general rule is, that a plaintiff must declare on the special agreement, so long as it remains executory, on the ground that a promise will not be implied when a special contract is shown. But, he may declare specially on the contract, or generally on the common counts, at his election, when it has been fully executed on his part, and nothing remains to be done on the part of defendant but the payment in money of the stipulated amount.- — Jonas v. King, 81 Ala. 285; 2Greenl. Ev. § 104. Ordinarily, a plaintiff may recover on the common counts, when by the breach of a special agreement he becomes entitled to recover a sum in numero, or which can be rendered certain by mere calculation. — Holloway v. Talbot, 70 Ala. 389. On plaintiff’s requirement of security for the purchase-money, defendants proposed to give their acceptance payable at ninety days. They voluntarily fixed their relation to plaintiff, and, by agreeing to give their acceptance, promised to be directly and originally responsible. Their undertaking was not collateral to, nor to answer for, nor dependent upon, any default of Stoddard. So far as relates to plaintiff’s remedy, they agreed to be an independent principal, though they may have been accommodation acceptors, and the relation between them and Stoddard that of principal and surety. Had the acceptance been given, the liability of defendants [329] would have been absolute, and after its maturity, plaintiff could have declared and recovered on the common counts, merely introducing in evidence the acceptance, without proof of notice of non-payment by the drawer, or demand of payment. The promise of defendants comes within the principle, which is applicable when goods are sold to be paid for by a bill of exchange or note payable in the future. If the purchaser refuses or fails, in such case, to give the bill or note, the vendor may, after the expiration of the credit, bring an action to recover the price, using only the common counts. The claim of plaintiff became pecuniary and absolutely due after the expiration of the time during which the acceptance was to be current, and no duty remained but the payment in money of the price by the defendants, which is nothing more than the law would imply. As plaintiff was entitled to receive the money, giving the acceptance, after the expiration of the credit, would have been of no avail. The contract having been fully executed on the part of the plaintiff, and the action not having been commenced until the time of credit had expired, the common counts are sufficient. — Anderson v. Anderson, 4 Dana, 352; Harrell v. Mills, 21 Wisc. 90; Vincent v. Rogers, 30 Ala. 471; Bates v. Starr, 6 Ala. 697; Brooks v. White, 1 Bos. & P. New Rep. 329; Hos-kins v. Duperoy, 9 East, 498. Affirmed.