Rock Island Sash & Door Works v. Moore, Handley Hdw. Co.

DOWDELL, J. To the complaint, which was on the common counts, the defendant filed pleas numbered from 1 to 8 inclusive; the first being the general issue and the rest special pleas. Subsequently the third and fourth were amended, and the second, sixth, seventh, and eighth were withdrawn. By the third and fourth pleas set-off was pleaded as a defense. By the fifth plea recoupment was intended to be pleaded, and, indeed, was so treated by the parties; but it is not shown by the averments in the plea that the damages sought to be re [587] couped arose out of the transaction on which the suit was brought or the .complaint was based. Demurrers were interposed to these pleas, but we think they were unobjectionable on any of the grounds assigned. There were replications, - rejoinders, and surrejoinders, to which demurrers were interposed, and upon which rulings were had, but which we need not consider, since the pleas that these replications, rejoinders, and surrejoinders relate to were subsequently withdrawn. It is stated by counsel on both sides in their briefs that the main issue in the case hinges upon the construction of what is designated in the record as “Order No. 8,489,” which is as follows: “Birmingham, Ala., November 29th, 1900. Order No. 8,489. Rock Island Sash & Door Co., Rock Island, 111. — Gentlemen: Please enter our order for one. car K. D. sash, with privilege of three, at 78 per cent, off the list, specifications first car to be furnished within twenty days, and, if others are taken, both -to be furnished by April 1st. Price f. o. b. Rock Island, freight allowed to Birmingham. Yours truly, Moore & Handley Hardware Co.” The contention of appellee, defendant in the court below, was and now is that said order formed part of the contract, the foundation of the plaintiff’s suit; the said complaint while on the common counts, being for a balance due on a contract of purchase by the defendants from the plaintiff of, a car of doors and blinds, and which contract, while a single and entire transaction, was for the convenience of the parties put in the form of two orders, numbered, respectively, 8,488 and 8,489, the first relating to the doors and blinds, and the latter to the K. D. sash. There was the further contention by appellee that the part of said contract designated as “Order No. 8,489,” above set out, was as to the three cars of K. D. sash severable. The contention of the appellant was, and is now, that order No. 8,489 was a separate and distinct .contract from the contract for the purchase of the doors and blinds, and, furthermore, was in itself entire and inadmissible. On the trial the evidence on the part of the defendant tended to show that there was but one contract, and that the two orders constituted a single transaction, and were [588] put in two forms for convenience of the parties. The evidence of the plaintiff, on the other hand, tended to show that the two orders were wholly separate and distinct transactions; the one having no connection with or reference to the other. The plaintiff objected to the introduction of this evidence, when offered by the defendant, on the ground, that it was an effort to vary a written contract by parol evidence. Where there are two written contracts, it is competent to show by parol evidence that they relate to one and the same transaction-and constitute one contract, without offending the .rule against varying a written contract by parol evidence. — 1 Greenleaf on Ev. (16th Ed.) § 283. Order No. 8,489, set out above, whether taken by itself or in connection with the evidence, we think, shows a sever-able contract. The goods were to be. delivered in installments, and the price was proportioned to and payable on the several installments. The order was for one car, with privilege of three. The option to take belonged to the purchaser. The failure or refusal of the purchaser to furnish the specifications on the first car within the time limit, or, for that matter, the failure or refusal of the purchaser to take the first car, did not furnish the plaintiff with the right to abrogate the entire contract. It would have had its remedy against the defendant for damages for any failure or refusal on the part of the defendant to, accept the first car. In other words, the defendant could not have escaped liability for a breach of the contract growing out of a failure on their part to furnish specifications on the first car within the time limit. The'principle governing such contracts is thus stated by- the New Jersey court in Gerli v. Silk Mfg. Co., 31 Atl. 401, 30 L. R. A. 61, 51 Am. St. Rep. 611: “When the seller of goods has agreed to deliver them in installments, and the buyer has agreed to pay the price in installments, which are proportioned and phyable on. the delivery of each installment of goods, default by either party with reference to any one installment will not ordinarily entitle the other party to abrogate the contract.” As said in Johnson v. Allen, 78 Ala. 391, 56 Am. [589] Bep. 34: “Each delivery is considered in the nature of a separate and distinct contract.” In Rugg v. Moore (Pa.) 1 Atl. 320, it is held that an agreement for sale of six loads of corn, delivered at different time's and payable at a price per bushel on delivery, is a severable contract. In Osgood v. Bauder, (Iowa) 39 N. W. 887, 1 L. R. A. 655, which seems to be a case in point, there was a contract by a traveling salesman of a coal company for the sale and delivery of 150 cars of Scranton coal at a certain price, shipped as ordered during August and September, and with the privilege of 250 cars more at same price and upon same terms. The buyer ordered 400 car loads before the end of September, but the seller failed to furnish 290 of the cars ordered. After the agreement was made the price of coal advanced, and, when the coal company sued the buyer for the purchase price of the coal actually delivered, the defendant demanded that the damages sustained by reason of the failure of the coal company to fill its orders be treated as a. counterclaim to any claim held by the plaintiff. The court said: “But the agreement must of necessity he considered as several, for the reason that it consisted of two parts, one of which was, in effect, a contract of purchase and the other a contract for the.privilege of purchasing. We shall therefore treat so much of the contract as relates to the 250 car loads of coal as separate and distinct from the remainder. * * * A right to rescind a, contract for a certain amount of coal to be shipped in quantities as ordered, payment to be made for each shipment a certain number of days after shipment is made, is not given by a failure to pay for certain shipments within the time specified, .as such failure does not go to the whole contract.” In Sims v. Brewing Co., 132 Ala. 311, 31 South. 35, it was held that if a part of a contract to be performed by one party consists of separate items, and the price to be paid is apportioned to each, the contract is severable. The following cases are to the same effect: Gomer v. McPhee, (Colo. App.) 31 Pac. 119; Hausen v. Consumers Co., 73 Iowa, 77, 34 N. W. 495; Myer v. Wheeler, 65 Iowa, 390, 21 N. W. 692; Cannon Coal Co. v. Taggart, 1 Colo. App. 60, 27 Pac. [590] 238; Tucker v. Billing, (Utah) 5 Pac. 554; McGrath v. Cannon, (Minn.) 57 N. W. 150; Otis v. Adams, 56 N. J. Law 38, 27 Atl. 1092; Lcesco Oil Co. v. Brewer, 66 Pa. 351; Gill v. Lumber Co., (Pa.) 25 Atl. 120. Applying the foregoing principles to the undisputed facts in the case, we fail to find that any error has been committed, and the judgment appealed from will be affirmed. Affirmed. Weakley, C. J., and Haralson and Simpson, JJ., concur.