Cassells' Mill v. Strater Bros. Grain Co.

MAYFIELD, J. This is an action by appellee, a Louisville (Ky.) grain dealer, against appellants, Gadsden (Ala.) mills et al., and is by the vendor against the vendees, to recover damages for breach of a contract for the sale of 13,200 bushels of “No. 2 red winter wheat.” The contract was as follows: “Louisville, Ky.; December 18, 1905. Oassels’ Mills, Gadsden, Alabama. Gentlemen: We confirm sale to you today by ware through Mr. Samuel F. Milan, of thirteen thousand two hundred (13,200) bushels of No. 2 red winter wheat, in bulk, at $1.04% per bushel, including freight to Gadsden, subject to Louisville terms; shipment to be made at the rate of 600 bushels per week, beginning first week in January, with the under — 280 — standing that after January the price will be lc per-bushel pei’ month additional, or in other words any wheat shipped in January on this contract will be-$1.04%, February shipment $1.05%, March $1.06%, April $1.07%, and May $1.08%, you to guarantee the present rate of 19c per hundred pounds net from Louis--u'llo to Oadsden, or in other words, if the rate should advance from the present basis, you will pay the advance, and if it should decline from the present basis you to receive the benefit of the decline if any. Yours, truly, Strater Brothers Grain Co., Incorporated, by Leonard A. Hewitt, Secy. We hereby accept and confirm the above contract. Cassels’ Mills.” The complaint originally consisted of three counts. Demurrers were sustained to two of these, 1 and 3, leaving count 2, as to which demurrer was overruled. The complaint was then amended by adding counts 4, 5, 6 and 7. Demurrers were overruled to each of the amended counts.. To these counts defendants pleaded the general issue,, and a number of special pleas, numbered from 1 to 7, inclusive. The trial court sustained demurrers to> pleas 3 and 5, and overruled the demurrers to the other-pleas. The case was tried upon the issues as above indicated, and resulted in a judgment for plaintiff for-$1,448, from which judgment the defendants prosecute this appeal. The judgment was rendered on the 19th day of Nor vember, 1907, and on the 20th day of December, 1907,. an order was made allowing 30 days in which to have bill of exceptions signed. On the 28th day of November, 1907, defendants filed a motion for a new trial, and on the same day this motion was set for a hearing on the 30th day of November. It appears that the motion was, on the 20th day of December, finally disposed of bv being denied and overruled. At this time the de — 281 — fendants were allowed 30 days in which to have bill of exceptions signed, and the bill was signed on the 7th day of January, 190S. The appellee here moves to strike the bill of exceptions because not signed within the time required by law, and also to strike the assignments of error predicated upon the matter shown only by the bill of exceptions. The act creating the city court of Gadsden (in which this action was tried) contains the provisions usually found in the acts creating the city courts of this state, to the effect that bills of exceptions shall be presented to, and signed by, the judge, within 30 days after the trial, unless the time be extended by the court or by agreement of counsl.—Acts 1900-01, p. 1299. The bill in this case was not signed within 30 days after the trial, and the time within Avhich it could be signed was not extended until after the 30 days had expired. The motion for a new trial was made within time, and the bill of exceptions, in so far as it pertains to the motion for a neAV trial, was signed Avithin the time, and it may be looked to for the purpose only of revising the rulings on the motion for a new trial. It cannot be looked to, as a part of the record, for revising actions or rulings of the court on the original trial -proper, unless the same questions were again presented and reneAved on the motion for a new trial.—Cobb v. Owen, 150 Ala. 410, 43 South. 826; McCarver v. Herzberg, 135 Ala. 544, 33 South. 486; Bank v. Wilks, 132 Ala. 573, 31 South. 451; Ala. Midland v. Brown, 129 Ala. 282, 29 South. 548. Of course, no bill of exceptions is necessary to the reAdsion of the rulings of the trial court upon the demurrers to the pleadings. These are and must be shown by the record proper, and not by the bill of exceptions. The counts of the complaint- as to which de — 282 — murrers were overruled practically and substantially followed the Code forms provided for such actions, and hence are by law sufficient. It was not necessary for the plaintiff to sue the defendants as partners or as a corporation; they can be sued as individuals, or as partners, if they are partners. The complaint does not attempt to declare against them either as partners or as corporators. There is nothing in the complaint or in the evidence to show that this was necessary. The defendants are in a better position to know whether they are individuals, partnerships, or corporations, than the plaintiff. The character in which they do business would come better from them in the form of a plea, than in that of a demurrer. There is clearly nothing in any of the grounds of the demurrer; those that are not too general go to defensive matter purely. There was no necessity for the complaint to do more than state a good cause of action ; and this each count complained of did, practically in Code form. Elements of damages, amounts thereof, etc., cannot be raised by demurrer to a complaint, if the complaint states a cause of action even for nominal damages. Objections or exceptions as to such matters must be by motion to strike, by objections to the evidence, or by instructions to the jury; and not by demurrer.—Norton v. Kumpe, 121 Ala. 446, 25 South. 841; Pryor v. Beck, 21 Ala. 393. That the plaintiff could have sold the wheat bought by defendant, in the market, to other parties, without a loss, was purely defensive matter. Matters of defense need not be alleged in a complaint.—Booth’s Case, Minor, 201. The grounds that the counts did not show the manner in which the plaintiff was damaged, and did not show that the wheat was tendered by plaintiff and. de — 283 — dined by defendants, are sufficiently answered by tbe averments that the defendants refused to take and to pay for the wheat and notified plaintiff not to ship any more. There is likewise nothing in the ground of demurrer that the phrase used in the contract, “subject to Louisville terms,” is “ambiguous and uncertain.” The contract would be good without this term; if void for uncertainty (which it is not), it could be eliminated and yet leave a good contract; if uncertain, it is - capable of being made certain by extrinsic proof. The parties used it in their contract, and, if the contract is sued on, it is certainly proper to set out the contract as it was made. It is a question of proof .to show what the parties meant or intended to express by it, if-its meaning .is uncertain, and not a ground of demurrer unless it rendered the contract Aroid and of no effect. The contract was not void on its face, by reason of this phrase, but it Avas open to both parties by competent evidence to sIioav the meaning of the phrase and what the parties meant to express by, it at the time they used it. If uncertain or equivocal, its ambiguity is of the kind .that is open to explanation by parol evidence. The true rule of interpretation of contracts, is to make them speak the intention of the parties as at the time they were made. A corollary of this rule is that, where any doubt arises as to the true sense and meaning of the wor-as themselves, or as to their application under the particular circumstances, their import may be shown by parol proof dehors the instrument itself. The contract being complete with or without this phrase, it will support a cause of action; and is not subject to demurrer for uncertainty of meaning of words or phrases which do not render it void.—1 Greenl. on Ev., 278; Chambers v. Ringstaff, 69 Ala. 140; Gunn v. Clendenin, 68 Ala. 294; — 284 — Drake v. Goree, 22 Ala. 409; Smith v. Aikin. 75 Ala. 209; Jones v. Anderson, 76 Ala. 427. Some words and phrases acquire, by custom or otherwise, a well-known, peculiar, idiomatic meaning, in a particular locality or trade or business, aside from their general or common meaning. — Authorities supra. But it is not the office of a complaint on a contract to define the meaning and sense of the words and phrases used therein. If the words complained of render the contract void, or show that it will not support a cause of action, then a complaint declaring on the contract would be subject to demurrer. One ground of the demurrer to the counts goes to the point that the contract sued on does not show that it was signed by the defendant T. M. Cassels, but only by the defendant “Cassels’ Mills.” This ground is answered by the fact that each of the counts avers that the contract sued on was executed by both of the defendants; and this might be done without both signing it. The question attempted to be raised by the demurrer, would arise on the failure of proof, or upon variance between allegation and proof. The contract sued on being alleged to be in writing, its execution could only be raised by a sworn plea, and not by a demurrer.—Code, § 5332. Plea 5 was bad, in that it was a plea of set-off, and the only amount offered to be set off or recouped was $5,000 as damages or losses to their trade accruing from the sale of flour manufactured out of the wheat purchased of plaintiff, which loss was alleged to have been occasioned by the inferior quality of the wheat sold, in that it was not of the grade or quality contracted to be delivered. In order for such damages— damages for breach of contract of sale — to be recovera — 285 — ble in the main suit, or as set-off or recoupment, .it must be alleged that such damages were reasonably within the contemplation of both parties at the time of the contract of sale. The vendor must have known, or have had knowledge of facts sufficient to charge him with notice, that the wheat sold was to be manufactured into flour to be sold by the vendees to or for a particular trade, and that- the damages suffered would probably result from a breach of the contract on the part of the vendor. It is not sufficient that the damages were suffered, and that the purchasers contemplated the manufacture of the wheat into flour and sale of it, at a. profit, at the time of the purchase, but the vendor must know this too, or be chargeable with notice thereof. . Damages for breach of a contract of sale should be such as may fairly and reasonably be considered to have arisen naturally, i. e., according to the usual course of things, from such breach of contract itself, or to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach. Certainly any special facts which magnify the transaction and entitle the party to special damages should be brought within the contemplation of the parties.—W. U. Tel. Co. v. Northcutt, 158 Ala. 539, 48 South. 553, explaining Hadley v. Baxendale, 9 Exch. 341. These damages or losses of profits in the sale or resale of manufactured products are speculative and too remote to be recoverable in an action for breach of •contract of sale of the raw material out of which the product is to be manufactured and sold. Whatever may be the law and rule of other states, it is the settled law of this state that such damages are too conjectural and speculative when based on losses of, or failure to realize, profits out of contracts for resale of the prop — 286 — erty or for sale of products .to be manufactured, out of the property. The true and proper measure of damages for breach of a contract to sell and deliver chattels is the difference between the agreed price and the price at which similar property could be purchased in the markets.—Ala. Chem. Co. v. Geiss, 143 Ala. 593, 39 South. 255; McFadden v. Henderson, 128 Ala. 223, 29 South. 640; Watson v. Kirby, 112 Ala. 436, 20 South. 624; Nichols v. Rasch, 138 Ala. 372, 35 South. 409; Sutherland on Damages (3d Ed.) pp. 134, 148, 163. This being the only damage or claim sought to be set off or recouped by the plea, it was therefore subject to demurrer; and it was no defense, even pro tanto, to any count of the complaint. Had there been other damages sought to be set off by the plea, it would probably not have been subject to the demurrer, because these particular damages were not • recoverable.' The grounds of the motion for a new trial, going to the rulings on the pleadings, have been heretofore disposed of. Many of the other grounds of the motion are entirely too general to be considered. Such are grounds 4, 5, and 6. A part of the evidence included in each of these grounds was unquestionably admissible, and to some of which no objection was made on the trial. But this court will not search through the entire mass of evidence to see if anjr part was objectionable; and, if a part only was objectionable, it would not make the whole objectionable, nor be available on these general assignments.—So. Ry. Co. v. Kirsch, 150 Ala. 659, 43 South. 796; Ala. Mid. Ry. Co. v. Brown, 129 Ala. 282, 29 South. 548. The seventh ground of the motion is not availing-, for the all-sufficient reason that the defendants admifled that they received statements of the July sales through — 287 — the mails; so it could not injure them for this witness to testify that he mailed the statements to the defendants. Charge A, requested by defendants, and refused by the court, was the general affirmative charge for the defendants, and was properly refused because there was abundant evidence to support a judgment for plaintiff. Charge B, requested by defendant, assumed as true disputed facts. It was argumentative, and. calculated to mislead the jury, and for these reasons was properly refused. We are of the opinion that the court erred in giving charges á and 5, at the request of the plaintiff. These charges, in short-, were that if the plaintiff, during the life of the contract, notified the defendants that the “Louisville terms” -meant “Louisville weights and grades final,” and the defendants thereafter ordered more wheat shipped under that contract, this alone amounted to a ratification of the contract interpreted according to plaintiff’s contention; and, in that event, their verdict must he for the plaintiff. This was a circumstance to which, if true, the jury might look in determining what the phrase meant, and what the parties meant by it when the contract was made, and one tending to show a ratification of the contract with this meaning, after the notice; yet it alone was not conclusive on the defendants. The defendants had as much right to show that “Louisville terms,” as used in the contract, did not- mean “Louisville weights and grades final,” as did the plaintiff to show that it did mean that. The mere fact that one of the parties asserted, after the contract was executed, that it meant this or that, was not conclusive upon the other, though he did not, at the time, deny it that meaning; nor was he re — 288 — quired to abandon the contract because the party ascribed a. certain meaning to words which were susceptible of a different interpretation, or a meaning not consonant with his construction of them. It is conclusively shown that plaintiff and its witnesses differ from the defendants and their witnesses as to the meaning of the phrase “Louisville terms,” used in the contract; one side contending that it means one thing, and the other side that it means an entirely different thing, making the effect of the contract entirely different in the two cases. What was meant by the parties to this contract, under the evidence in this case, was peculiarly a question for the jury to determine, from all the evidence — and the evidence was in direct conflict. The plaintiff could not thus preclude the defendants, as to the meaning of this term, by writing or telling them its construction of it, any more than the defendants could have precluded the plaintiff, by writing or telling it their construction of it. The fact that a given meaning was asserted by one party to the other, and was not denied or questioned by the other at the time, would be a circumstance tending to show that the term was given that meaning by the parties; but it is not conclusive, especially when asserted long after the contract was executed and partially performed. The charges were also objectionable because they assumed as true a disputed fact; that is, that the plaintiff notified the defendant that “Louisville terms” means “Louisville weights and grades final.” The correspondence, conversations, and all transactions, between the parties, pertaining to the contraer ' the subject of this suit, consisting of letters, telegrams, phone messages, etc., were all competent and admissible under the issues in this case. There was no attempt — 289 — to deny the truth or genuineness of any of these letters, telegrams, messages, etc.; in fact, all, or nearly all, seem to have been conceded to be true and genuine. Hence no harm or injury could result from their admission in evidence. If they had not been conceded to he true, they were competent, properly proven, ami admissible. They were the very best evidence of the whole transaction being inquired into. For the error pointed out, the judgment must be reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., and Simpson and McClellan, JJ., concur.