Syson & Co. v. Hieronymus Bros.

SHARPE, J. This suit is on an account wherein the plaintiffs charge the defendants for timber sold and sendees performed with a tug boat in towing timbers and barges and in carrying the defendants, their employes and belonging's, from time to time. Except as to a few small items the dispute invalves only the prices, charged for the boat’s sendees. Plaintiffs’ evidence tends to show that an agreement ivas made between the-captain of his boat and defendants to effect that when the boat had no tow to take out, defendants were to be charged for carrying their employes to and from their place of work at the rate of one dollar and a half' [489] apiece for each single trip, while the defendants contend'-, that this agreement with the captain was for one dollar and a half for the round trip. Whatever agreement, there was for towing, was made between the plaintiff W.. T. Hieronymus and defendant W. K. Syson. In it, the specific price for such service was not named, but Syson’-s testimony is to effect that plaintiff’s agreed to do the work “as reasonable as any other boat would do it.” Since competition in prices was not • resorted to to make the towing charges certain, the agreement even if' made according to the defendant’s contention left the-amount to be charged wholly indefinite, and without a. basis for proper ascertainment except upon the quantum meruit which is according to their reasonable value. Upon that question, the character of the boat and its trips having been shown, it was not improper to allow the plaintiffs to prove as one of its running expenses the amount and value of coal required for a trip, or to allow them to ask their witness whether the boat could “earn a livelihood” at prices less than were charged. The court properly refused to allow witnesses to state whether they would have done the work at prices less than those charged. A witness cannot know as a fact what his conduct would have been but was not. However the consideration of procuring all of defendant’s business might have been used as an inducement to cheapening prices by agreement, it could not have affected the reasonable value of the services, neither could a contract for reducing prices below that standard be implied from custom unless the custom was so-general as to raise the presumption that the parties knew of and contracted with reference to' it. To make-good defendants’ proposed inquiries into what was customary in such cases, they should have been limited to. a general custom. Whether the plaintiffs had ratified contracts made-for them by the boat’s captain became immaterial in view of the fact that his authority to make prices for-carrying passengers was not disputed. The court’s rulings on evidence not above specially [490] referred to are obviously correct, and we find no reversible error in the oral charge excepted to or in the refusal of charges requested. ' In the oral instruction there seems to be an inaccuracy in the use of the term customary charge instead of reasonable charge, but it could not have injured defendants since there was nothing to show that customary charges were other than reasonable. There was evidence tending to show acquiescence on ■defendants’ part in statements of account rendered subsequent to time when it is claimed objection, was made to the first statement; therefore charge 4 as well as charge 1 was properly refused. For the reasons we have stated, the proper basis for recovery under the facts hypothesized in charge 3 was the reasonable value of the work instead of the basis .stated in that charge. Charge 6 is bad in what is therein said of the verdict. In respect of the verdict there is no difference in our practice between a plea of tender after suit brought and one of tender before suit. The deposit of money in court is treated as paying and striking from the complaint the amount tendered and deposited; and unless the plaintiff .proves more than that amount, the verdict upon the issue joined under that plea should be for the ■defendant. — Schuessler v. Simon, 100 Ala. 422; Shiver v. Johnston, 62 Ala. 37; Raiford v. Governor, etc., 29 Ala. 382; Wright v. Behrens, 39 N. J. Law, 413. See also Gardner v. Black, 98 Ala. 638. The judgment will be affirmed.