McFadden & Bro. v. Henderson

HARALSON, J. -There is no dispute but that the contract having been made by the agent of plaintiffs, for their benefit, they may sue on it, though their names were not disclosed in the transaction. — Bell v. Reynolds, 78 Ala. 511; City of Huntsville v. H. Gas Co., 70 Ala. 191. When the terms and conditions of a contract are certain, its construction is a question for the court and not for the jury. — Barnhill v. Howard, 104 Ala. 412; Foley v. Felrath, 98 Ala. 176. In construing contracts, courts lean to that construction which will make them unconditional rather than — 230 — conditional, unless it be shown to have been fairly understood by the parties that the stipulation relied on to show its conditional character, is an essential element in the performance of the contract. — Tiedeman on Sales, § 208; Crass v. Scruggs, 115 Ala. 258. In the contracts of merchant's, generally, time is of the essence; and “a statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, in the sense in which that term is used in insurance and .maritime law, that is to say, a condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract.” — Norrington v. Wright, 115 U. S. 188, 203, and authorities there cited. As to time when delivery of goods sold should be made, Mr. Btorv says: “If any time be agreed upon, and the vendor fails to comply with the agreement, the vendee will.not be bound to accept, if a compliance with the terms in respect of the. time be an essential consideration of the bargain. * * * Time is not, however; ordinarily deemed to go to the essence of a contract, unless it is so expressly treated by the parties, or, unless it naturally follows from the circumstances of the case.” — Story on Sales, § 310. Addison on the same subject observes: “If the. time appointed for delivery or payment is. not of the essence of the 'contract, the delivery and payment, must be made within a reasonable time 'after notice and request of performance; and if no time at all has been appointed for the performance of these acts, the vendor is bound to deliver within a reasonable period after request and tender of the price, and the purchaser must in like manner accept the goods and pay for them on delivery, or offer of delivery being made by the vendor; and if the contract is not. sought to be carried into effect within a reasonable period, either on the part of the vendor or the purchaser, it is deemed to be dissolved and- abandoned by mutual consent.” — Addison on Contracts, § 578. What is a reasonable time for the perfomance of the contract, when time is not of its essence, is to be — 231 — determined by all the circumstances of each case, and is a question of law. — Ib; 2 Parsons on Contracts, 775 § 661; Adams v. Adams, 26 Ala. 272; Fail v. McRee, 36 Ala. 61; Cotton v. Cotton, 75 Ala. 345; Am. O. Ex. Co. Ryan, 104 Ala. 267, 274; Comer v. Way, 107 Ala. 301; Griffin v. Ogletree, 114 Ala. 344. In the -case in hand, the contract rvas in writing, and had respect, as the evidence showed, to 1,500 hales of cotton, that defendants owned and were proposing to sell the plaintiffs. The offer- to purchase was, we “offer six seven-eights f. o. b. round nothing below low middlings.” The words, “six seven-eights,” were shown to mean six and seven-eights cents per pound; the letters “f. o. “free on hoard cars without cost to the purchaser,” and the word “round,” “taking the lot as it is, without [the low middlings; taking all the cotton in the lot, 1,500 bales, leaving out everything that, classes below low middlings, without the unmerchantable cotton, and does not include sandy, seedy, or false packed -cotton.” The general rule to determine whether a contract of sale is executed or executory is, “If anything remains to he done by either party to the transaction before delivery, as, for example, to determine the price, quantity or identity of the thing sold, the title does not vest in the purchaser, and the contract is merely executory. If the sale is complete, and the goods perish without the fault of the seller, the purchaser is bound to pay the agreed price.” — Foley v. Felrath, 98 Ala. 176. In this case, -the number of hales out of the lot of 1,509, that were sold was not determined, for the number that would class low middlings and under, and bow many were unmerchantable as being “sandy, seedy or false packed,” was unascertained and could not have been known until the cotton was turned out and classed, which remained, under the terms of sale, to be done, and which was never done. The sale was, therefore, executory and not executed. — Foley v. Felrath, 98 Ala. supra; Mobile Savings Bank v. Fry, 69 Ala. 348; Fry v. M. S. Bank, 75 Ala. 473; Warten v. Strane, 82 Ala. 311. — 232 — The reply of the defendants to the plaintiff’s agent, accepting the proposition of purchase was, “Fifteen hundred bales of cotton is yours come at once, we want the money ont of it and the insurance stopped.” This was an unconditional acceptance of the offer of puchase as made. The words, “come at once, we want the money out of it,” etc., did not attach a condition to the sale, and the defendants do not so contend, but were added by way of request, and to imply that it was important to defendants for the transaction to be fully consummated, at as early a time as practicable, or “us soon as possible.” These latter words have been construed by us to mean within a reasonable time, or within such time as is reasonably necessary, under the circumstances, to do what the contract required to be done. — Florence G. E. L. & P. Co. v. Hanby, 101 Ala. 16; Bonifay v. Hassell, 100 Ala. 269; Fail v. McRee, 36 Ala. 678. No time was specified in the contract within which the cotton was to be delivered, and under the rules to which we have referred, no time, under the terms of the contract, for the delivery of the cotton sold, was of its essence. The only obligation, therefore, on the vendor and the purchaser was that each should perform his part in the consummation of the bargain within a reasonable time. The ■ sellers, acting under this construction of their contract, by their telegrams indicated their willingness to perform it up to the 24th November, When at 10 :20 o’clock A. M. of that date they wired Beale, the agent of plaintiffs, “You have no cotton with us.” The plaintiffs, to this.time, had not repudiated their contract, or indicated a purpose to do so. On the other hand, they had, on the 20th November, wired defendants to order the cotton out at once, imless it rained, and that a toan would be down as soon as possible; and, again, on the 21st, that the agent would come down as soon as their weigher arrives there. On the morning of the 24th, Beale telegraphed : “Sorry to disappoint-you; impossible to come; have not finished shipping here,” and at 10:50 a. m. of the same day, he telegraphed to defendant again: “We — 233 — expect to begin receiving cotton to-morrow sure;” and still again, on same day: “Since wiring you this morning, have wire from Montgomery that weigher and crew he down on to-night’s train.” The main office of plaintiffs and their headquarters were at Montgomery. The defendants, under these circumstances, had no right of peremptory abandonment and rescission of the contract. The plaintiffs, in the absence of fault on the part 'of defendants, were bound by, and could not recede from their bargain, nor could the defendants do so, without putting plaintiffs in default. In Monroe v. Reynolds, 47 Barb. (N. Y.), 579, it is held, that in all cases where time is not necessarily of the essence of the contract, the seller, “if he wishes to have the contract either performed or abandoned, must go further, and by some demand, offer on his part or notice, put the purchaser to a refusal to perform, before he can treat the contract as having been rescinded by the purchaser. Mere neglect to perform by the day, generally, is not sufficient.” To the same effect is Carney v. Newberry, 24 Ill. 203. In Higby v. Whittaker, 8 Ohio, 201, which had reference to the rescission of a sale of land, it was said: “The law requires some, positive act by the party who would rescind, which shall manifest such intention, and put the opposite party on his guard, and then give a reasonable time to comply; but it requires eagerness, promptitude, ability and disposition to perform, by him who would resist a rescission of his contract.” In an extended note to Bryant v. Isburgh, (13 Gray, 607), in 74 Am. Dec. 655, Mr. Freeman discusses the question of rescission of contracts, whether of the sale of goods or of land, and on review of the authorities, states: “Where one party relies on the fact that the contract has been rescinded on his part, as a defense to an action on the contract, or on some right arising therefrom, where the rescission is not by mutual consent, he must show that some notice of the rescission was brought home to. the opposite party. — Carney v. Newberry, 24 Ill. 203; Higby v. Whittaker, 8 Ohio, 201. A rescission may be effected by word or direct notice, or by any act of either party which prevents performance — 234 — of the mutual understanding. — Suber v. Pullin, 1 S. C. 273. A formal written notice is not necessary, but the law requires, on the part of him who would rescind, some positive act which shows such intention, and puts the opposite party on his guard, so as to give him a reasonable time to comply with his agreement. — Mullin v. Bloomer, 11 Iowa, 360; Hooper v. Taylor, 4 E. D. Smith, 488.” The same learned annotator had discussed the question previously, and to the same effect, with citations of many authorities, in his notes to Johnson v. Evans, (8 Gill. 155), in 50 Am. Dec. 669. The only notice, if 'any, that defendants gave plaintiffs to rescind as appears, was contained in their letter to them, of date 21st of November, where they say: “We expect you to-morrow morning without fail to commence receiving cotton. We are read}'' to deliver”; and in the'one of the 22d November, saying: “We. wore disappointed that you did not show up here on arrival of train this morning. It costs big money to carry 1,500 bales of cotton, and we want to deliver it and get our money out of it. Will certainly expect you to-morrow morning to get to work on it. Don’t fail to come.” The next notice was on the 24th November, at 10:20, to the plaintiff’s agent, Beale, at Elba, by wire, stating: “You have no cotton with us.” We are indisposed, under these facts, to hold this was such a notice of rescission as defendants were required to give, if it was their purpose and they intended to rescind, the plaintiffs having done nor said anything to indicate a purpose on their part not to abide their contract. Indeed, they offered to prove, which the court would not allow, that they sold 1,500 bale's of cotton, after their purchase of that number from defendants, and ¡that after being notified of defendants’ refusal to deliver the cotton, they replaced this 1,500 bales; and on the day that defendants notified them of their refusal to deliver, they sent two or three telegrams to defendants of their purpose to come, that day, and receive the cotton. The plaintiffs were bound by their 'contract, if the goods had fallen in price, and the fact that the price of cotton had — 235 — risen after tlie sale, as the evidence tended to show, furnished no excuse for repudiating the 'contract by defendants. Plaintiffs were entitled to a reasonable time, to comply with their contract, and of defendants’ notice to comply, which under the evidence they did not have, before defendants could rightfully rescind the contract. The court erred in giving the general charge for the defendants. The only remaining questions have reference to the-proof of damages by plaintiffs. In Bell v. Reynolds, 78 Ala. 511, the rule is- 'stated to be, “that in ordinary cases, when the vendor has failed and refused to deliver to the purchaser goods 'sold, the measure of damages for the breach of the contract, if the price has not been paid, is the difference between the agreed price and the market price of the goods at the time and place of delivery, with interest. — 2 Addison on Contr., § 580. This is upon the principle that the purchaser can readily go into the market and supply himself with the desired goods, by paying the difference in price. When this cannot he done, the reason of the rule ceases, and the rule itself can, therefore, have no application. — McHose v. Fulmer, 73 Penn. St. 365;” Ala. I. Works v. Hurley, 86 Ala. 217. As tending to show the value of the cotton at the time of delivery, the count very properly allowed the plaintiff to prove its market value that day in Enterprise. In Watson v. Kirby, 112 Ala. 436, 444, it was said, touching the-damages to be allowed for a failure to deliver chattels sold, “If there was non-delivery, or delay in delivery, of the logs or any of them, by the fault of itlie plaintiff, not waived by the 'defendants, and defendants aver and prove that at the time they ought to have been delivered, they were ready and able to receive and pay for the same, the plaintiff thereby became liable' to the defendants foa* such damages as they proximatelv sustained by the non-delivery 'or delay! * * If it was practicable for defendants to obtain logs-elsewhere to take the place of those due from the plaintiff, it was their duty to do so as expeditiously and cheaply as they reasonably could, and hold the plaintiff responsible, if he was at fault, for the excess of — 236 — «costs over tbe contract price of plaintiffs logs, and such -reasonable expense and loss as were necessarily incurred in procuring them.” — Clements v. Beatty, 87 Ala. 238; Johnson v. Allen, 78 Ala. 387; Schouler Per. Prop., § 572. The proof proposed by plaintiffs, that after being notified by defendants of their refusal to deliver the cotton, they went into the market and purchased 1,500 bales as quickly and cheaply as they could at a loss ■of two dollars a bale, as tending to -show their damages, should have been allowed. It was shown that they could not buy the cotton in.Enterprise. Prom what has been said, without passing on all. the errors assigned as to the rulings on the question of damages, the case may be readily and properly disposed of on another trial. Reversed and remanded.