McCleskey & Whitman v. Howell Cotton Co.

TYSON, J. This action is for the recovery of damages for breach of an executory contract entered into by and between plaintiff and defendants whereby the latter agreed to sell and deliver to the «former 200 bales of cotton at an agreed price per pound. The complaint contains 4 counts. A number of grounds of demurrer were interposed to each of them. The first of these insisted on is, that there is no averment of demand by plaintiff upon defendants to deliver the cotton. Each of the counts contain an averment of the refusal of the defendants to deliver the cotton and a readiness and willingness on the part of the plaintiff to pay for it on delivery. If it be conceded that an averment of a demand is necessary, a refusal, ex vi termini, imports that a demand was made. The insistence is without merit. — Ferguson v. Hull, 136 Ind. 339, 36 N. E. 254; Peoples B. L. & S. Association v. Reynolds, 17 Ind. App. 453, 46 N. E. 1008; Fletcher v. Cummings, 33 Neb. 793, 51 N. W. 144; Worth v. Stewart, 122 N. C. 258, 29 S. E. 579; Berney v. Drexel 33 Hun (N. Y.) 34; Ind. Mfg. Co. v. Porter, 75 Ind. 428. It is next insisted that the complaint should show that the offer was pending at the time of its acceptance by plaintiff. An offer is “deemed to continue in force until it has been answered, although it may be withdrawn at any time before it has been accepted unconditionally, but not afterwards.” — 7. Am. & Eng. Ency. Law (2d Ed.) 128 and cases cited in notes. See also, Mactier’s Adm’rs v. Erith, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262. If defendants relied upon a Withdrawal of their offer before acceptance by plaintiff, this is a matter of defense. [579] On the averments of counts 3 and 4 Marsh was defendants’ agent to communicate their offer and. to receive plaintiff’s acceptance of it, without defendants actually receiving notice of it. — 9 Cye. p. 273. It is true, defendants could have withdrawn their offer at any time before acceptance Avas communicated to their agent Marsh, but the telegram of plaintiff’s to Marsh when delivered to the telegraph company was a sufficient manifestation of acceptance, which was done before plaintiff was notified of the withdrawal of defendants’ offer.' — 9 Cyc.pp. 293, 294, 295, 296; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511, and cases there cited. The application Of.these principles to the averments of these coutns will suffice to show their sufficiency as against the contention that no binding acceptance by plaintiff of defendants’ offer is shown. A demurrer should be addressed to the whole of the count, and not to a portion of it. That ground of demurrer attacking that part of count four (4)' which relates to the damages claimed for a breach of the contract, alleged, upon the. ground that damages claimed are not such as the law permits a recovery for, consequent upon a breach of contract was, therefore, properly overruled. If a motion was made to strike this part of the count, it does not appear in the hill of exceptions, nor was an exception to the ruling of the court in denying the motion, which is shown only by the minute entry, shown to have been reserved by the bill of exceptions. This ruling, therefore, is not revisable. The only possible objection that can be urged against the sufficiency of the statement of the damages sought to be recovered is its failure to show in what market plaintiff purchased the cotton to take the place of the cotton that defendants agreed to sell it. The rule seems to be that the measure of such damages, if there was no market for the purchase of the cotton at the place where defendants were to deliver the cotton they agreed to sell, is the difference in the price plaintiff would have to pay for the same quantity and quality of cotton at the nearest available market where it could be obtained. — Me [580] Fadden v. Henderson, 128 Ala. 221, 29 South. 640. From the language employed in the count an inference is afforded that plaintiff did purchase the cotton in the market of Boaz, the place where defendants were to deliver what they agreed to sell. We do not, however, mean to he understood as holding that mere inferences in pleading are sufficient as against an attack by demurrer in a case where a demurrer can be availably interposed. The interrogatories propounded to witness King are not numbered in the record. The objection interposed was to “his answers to the ninth and tenth direct intrerogatories, to each separately, and to each separate statement contained in said answers, on the ground that the same were illegal, irrelevant and immaterial.” On this state of the record it would, to some extent, be guesswork on our part to undertake to review the- ruling of the court in overruling them. But be this as it may, if the object fought to be accomplished by the objection as shown by brief of appellant’s counsel was to exclude King’s testimony, some of which tended to establish the damages suffered by plaintiff as claimed in the fourth count of the complaint, the objection was properly overruled. Moreover, the objectionable answers, if any there were, should have been specifically pointed out in the objection. There was clearly no error in permitting witness Marsh to testify to the meaning of the “cypher words” used in the several telegrams. 'If he knew their meaning it was not necessary to produce the key. The words “ship promptly” contained in the telegram of acceptance sent by plaintiff to Marsh was clearly a mere direction to him as their agent, and cannot be construed as adding a new term to defendants’ offer. This, it seems to us, is apparent when we bear in mind that reference is also made in the telegram to 75 bales of cotton located at another point. Besides, the word “promptly” as.here used, means nothing more nor less than reasonable time —the latter term being a relative one, and its meaning-dependent upon the. circumstances.- — 23 Am. & Eng Ency. Law (2d Ed.) p. 971. It is entirely clear that the telegram replying to de [581] fenclants’ offer, made through Marsh, was an acceptance and not a mere althorization to Marsh to accept. It was a positive order to him to take defendants’ cotton at the price named in their offer of sale. The allegations of the fourth count as to a breach of the contract having been undisputedly, and. without adverse inference, established by the testimony, the affirmative charge requested by plaintiff was correctly given. This.being true, the plaintiff was certainly entitled to recover at least nominal damages. What we have said also disposes of the assignments of error predicated upon the refusal by the court of all the charges requested by .defendants adversely to them, except the one numbered 2. That charge was properly refused on what was said of a similar one in Koch v. State, 115 Ala. 99, 105, 22 South 471. The reason assigned for the refusal of this class of charges is so obviously applicable to. this case that we need not pointedly apply it. We have considered every insistence laid in brief of appellant’s counsel, and find no error in the record. Affirmed. Weakley, C. J., and Simpson and Anderson, JJ., concur.