Central of Georgia Ry. Co. v. Isbell

THOMAS, J. This cause was submitted and decided under Supreme Court rule 46 (65 South, vii). The amended complaint, on which the trial was had, alleged the breach of several conditions of a contract made by defendant with plaintiff for the purchase of cross-ties in a designated territory. (1) The allegations of performance on plaintiff’s part and of breach on the part of the defendant were conjunctively averred in the complaint, and must be proved as alleged.—H. A. & B. R. R. Co. v. Dusenberry, 94 Ala. 413, 10 South. 274; L. & N. R. R. Co. v. Mothershed, 97 Ala. 261, 12 South. 714; L. & N. R. R. Co. v. Dancy, 97 Ala. 338, 11 South. 796; B. R. & E. Co. v. Baylor, 101 Ala. 488, 13 South. 793; Armstrong v. Montgomery Street Ry. Co., 123 Ala. 233, 246, 26 South. 349; Western Railway of Ala. v. McPherson, 146 Ala. 427, 40 South. 934; Central Foundry Co. v. Bailey, 162 Ala. 623, 50 South. 346; Sloss-Sheffield S. & I. Co. v. Smith, 166 Ala. 437, 52 South. 38.—Southern Railway Co. v. Lee, 167 Ala. 268, 52 South. 648. (2, 3) If there be lack of proof as to any material averment necessary to a recovery, the general charge should be given on proper request. So, where the matter is descriptive of that which is material, a variance between the allegations and the proof is fatal.—Pharr & Beck v. Bachelor, 3 Ala. 237, 244; Forward v. Marsh, 18 Ala. 645; Dill v. Rather, 30 Ala. 60; Smith v. Causey, 28 Ala. 655, 65 Am. Dec. 372; Gilmer v. Wallace, 75 Ala. 220, 222; Wilkinson v. King, 81 Ala. 156, 8 South. 189; Stewart v. Tucker, 106 Ala. 319, 17 South. 385; Conrad v. Gray, 109 Ala. 130, 19 South. 398; Prestwood v. McGowan, 148 Ala. 475, 41 South. 779; Gould, Plead. 160, et seq.; 1 Chitty on Pl. 131; 22 Ency. Pl. & Pr. 522, 527. The evidence tending to show the several conjunctive aver-ments of the amended complaint, authorized the submission of the litigated facts to the jury.—Tobler v. Pioneer Co., 166 Ala. 517. 52 South. 86; Amerson v. Corona Coal Co., 194 Ala. 175, 69 South. 601. [472] Appellee insists that under the contract cross-ties might be delivered on the right of way of other railroads between Syla-cauga and Birmingham (within the territory indicated), and that the.plaintiff did deliver cross-ties thereunder on defendant’s fight of way and on the respective rights of way of the Southern and the Atlanta, Birmingham & Atlantic Railroads; that the same were inspected and accepted by the defendant as deliveries under the terms of said contract. (4) When this written contract is considered as a whole, it appears therefrom that it was in the contemplation of the parties thereto that cross-ties should be produced within the radius of the designated points, to be delivered by plaintiff to the defendant on its right of way when practicable, or that the same might be delivered on the right of way of other immediately connecting lines of railway in the same territory. Moreover, this was the construction placed on this provision of the contract by the parties thereto in the deliveries of cross-ties thereunder, and in the inspection and acceptance thereof by the'defendant.—Mobile County v. Linch, infra, 73 South. 423. The defendant’s certificates of inspection showed delivery and acceptance of cross-ties under this contract on the right of way of the Southern Railway Company, and the Atlanta, Birmingham & Atlantic Railroad Company in the territory embraced by the contract, and the payment therefor by the defendant of the sum of 11/2 cents for the loading on such connecting lines of the 1,272 cross-ties covered by the certificates and so delivered and accepted. The averment of the complaint as to the delivery of the cross-ties “on the railroad” was thus discharged by the proof of such delivery, inspection, and acceptance on the right of way of said connecting lines of railway. (5) There was evidence tending to show failure of payment for some cross-ties delivered and accepted as per contract terms. The number and amount of the respective deliveries, and the acceptance thereof and payment therefor, or liability therefor, were questions for the jury. (6) If there was a failure of the evidence to show that the number of cross-ties averred to have been delivered was so delivered at the alleged respective times, no variance was presented, provided the evidence showed that some cross-ties were delivered by plaintiff to defendant under the contract terms at the times averred. The law does not require the plaintiff to prove literally the allegations of his complaint as affecting the quantum [473] of recovery. The plaintiff was only required to prove the sub1 stantial averments of the complaint going to the right of recovery for the several alleged deliveries for which suit was brought. (7) If the defendant violated its contract by the attempted rescission without just cause, and declination further to inspect or receive cross-ties delivered by plaintiff under said contract, the measure of damages would be respectively: (1) The agreed price for such ties as had been delivered, inspected, and accepted under the contract, with interest thereon; (2) the difference between the agreed price and the market price at the time and in the territory of delivery, with interest thereon, for ties manufactured, ready for delivery, and improperly rejected; and (3) the difference between the contract price and the cost of production and delivery for ties to be manufactured and delivered under the provisions of the contract.—Hinckley v. Pittsburgh Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; Crandall-Pettee Co. v. Jebeles, etc., Co., 195 Ala. 152, 69 South. 964, 966; Hopkinsville Milling Co. v. Gwin, et al., 179 Ala. 472, 60 South. 270; Curjel & Co. v. Hallett Mfg. Co., infra, 73 South. 938; 2 Sedg. Damages (8th Ed.) § 94; 2 Benj. on Sales (4th Am. Ed.) 973; 2 Addison on Cont. 589; 2 Greenl. Ev. 261. The trial court committed no error in submitting to the jury the question of defendant’s right to terminate the contract, nor in stating the measure of damages for the breach of the contract should the jury find the defendant liable for a breach. In Abercrombie & Williams v. Vandiver, 126 Ala. 513, 28 South. 491, the court said: “It may be conceded as settled law that the parties to a contract may stipulate that the estimate of the work done and the compensation due under it, to be made by a third party, shall be final and conclusive, and such stipulation is binding in the absence of fraud or bad faith. * * * It is equally true that the estimate of the amount due is not binding in the absence of a provision in the contract to that effect.” It is sufficient to say that the plaintiff and the defendant in the case at bar made no such contract, giving absolute and binding effect to the certificate of the inspector, or of the inspection so made. (8) Charge No. 21 was properly refused, as taking no account of the cross-ties that were not inspected by the defendant. Defendant’s evidence tended to show that only 26 per cent, of the ties inspected were in accord with the contract provisions, while the plaintiff’s evidence tended to show that 90 per cent. [474] of the ties delivered by plaintiff to defendant were according to contract requirements. The questions of disputed fact were for the jury. There was sufficient evidence to sustain the verdict. The motion for a new trial was properly overruled. Affirmed. Anderson, C. J., and Mayfield, Somerville, and Thomas, JJ., concur.