Austin v. Beall

McCLELLAN, J. The plaintiff- (appellee) must trace his right to recover in this action through a breach by.defendants (appellants), of an implied warranty, in respect to quantity and quality, of a car of lumber bought and sold, respectively, by the parties. To such a purpose the common counts cannot be properly applied. — 4 Cyc. pp. 326-328, and authorities collated in notes thereon. Accordingly, the several affirmative charges, as to the common counts, requested, by and refused to defendants, should have been given. Their refusal was error. The measure of plaintiff’s damages, if otherwise entitled to recover, is that stated in Penn & Co. v. Smith [429] et al., 104 Ala. 445, 449, 18 South. 38. The standard of recoverable damage set down in that decision necessarily excludes freight charges as elements of the recovery. The contract between the parties contemplated the delivery of the lumber “f. o. b. cars” in this state, and not at the point of destination, remote from the place of shipment. Hence the freight charges on the car was a matter dehors the engagement between these parties and could not have been within their contemplation as an element of damages for a breach thereof. It follows that evidence of what the freight charges on the car were, or what freight charges on the car were paid, was erroneously admitted over defendants’ objection thereto. Under a phase of the evidence for the defendants it was open to the jury to find that the plaintiff supervised the loading of the car, and that it was loaded with the character and quality of lumber he directed. This evidence was disputed by the plaintiff on his examination and also by the evidence of those inspecting the car at destination. Of course, if plaintiff supervised the loading, and if the car was loaded with the character and quality of lumber he directed, the plaintiff could not, for obvious reasons, recover. But, on the contrary, if, as he testified, he did not so assume direction of the loading, but, a fortiori, complained of the character and quality of the lumber then being put in the car, the defendants could, of course, take nothing as the result of their contention in this regard before stated. The action is against J. W. and B. J. Austin. There is no description of them as constituting a partnership known and called the “Monarch Lumber Company,” the concern with which plaintiff contracted. It was not necessary to so describe the parties defendant in order to properly admit evidence of their joint liability as the [430] legal result of their association as partners. — Jemison v. Dearing, 41 Ala. 283; McCulloch v. Judd, 20 Ala. 703; 15 Ency. Pl. & Pr. pp. 920, 921. The special counts aver that the contract was made with plaintiff, by the defendants. The proof shows that the contract was made by the Monarch Lumber Company, and counsel seem to be in accord that the named company was a partnership of which defendants were members. It is contended that a variance resulted. On the state of the complaint in this case no variance was wrought. — 15 Ency. Pl. & Pr. pp. 925-927; Clark v. Jones, 87 Ala. 474, 482, 6 South. 362. Under the interpretation put upon the stipulation, “count and inspection guaranteed” (at point of destination), in Byrd v. Beall, 150 Ala. 122, 43 South. 749, 124 Am. St. Rep. 60, it necessarily results that the written report or memorandum of “count and inspection” made at destination was not admissible in evidence to show the true character, amount, and quality of the lumber contained in the car. It was held, and Well held, we think, in Byrd v. Beall, that the whole effect of the stipulation guaranteeing count and inspection was to assure conformity of the subject of sale to the order and bills therefor rendered the purchaser. Errors prejudicial to appellants intervened on the trial, so the judgment must be reversed, and the cause will be remanded. Reversed and remanded. Dowdell, C. J., and Anderson and Sayre, JJ., concur.