Thompson v. Strong, Bagley & Bagley

GARDNER, J. (1) Suit by appellees against appellant for damages growing out of a breach of contract wherein appellees purchased from appellant three cars of cotton seed at the price of $25 a ton, to be delivered on the cars at Guntersville, Ala. The contract was made on or about January 21, 1915, and appellees were given notice by the appellant on February 18th that he declined to deliver the seed. The jury found the issues in favor of the plaintiffs and assessed damages at $180. The only point presented in brief of counsel for appellant goes to the validity of the contract, in that it is insisted that the contract of purchase was uncertain for a failure to specify the exact amount of seed agreed to be sold; that a contract calling for the sale of a carload of cotton seed is too indefinite unless it also specifies the quantity of seed to be contained in the car. We have a similar question presented in the recent case of Ward v. Cotton Seed Products Co., 193 Ala. 101, 69 South. 514, wherein appear the following quotations from 35 Cyc. 210, 639: “If no fixed quantity of goods is contracted for, but the purchase is of a ‘carload/ damages should be computed on the amount usually contained in an ordinary car.” — Page 639. “Where the goods are sold by the ‘carload/ the term may be construed by the custom of trade; but in the absence of any agreement, or particular custom, it will ordinarily be held to mean the capacity of a car used for transporting the particular kind of goods sold. So, too, a sale of a ‘cargo’ of goods means ordinarily the entire load of the vessel, and is limited only by the capacity of the vessel.” — Page 210. The evidence is without dispute that the parties did agree on a sale of cotton seed at $25 per ton, for three carloads f. o. b. Guntersville, and that the defendant failed and refused to deliver it; that on February 18th the defendant sold several tons of seed to another party at Guntersville for $29 per ton. Testimony for the plaintiffs showed that immediately after the breach of his contract by the defendant they went into the open market at Guntersville and purchased three cars of cotton seed at $30 a ton. The evidence is further without dispute that a carload of cotton seed ranges from 15 to 32 tons; that the maximum car is 32, and the minimum 15 tons. [25] The verdict of the jury in this case ($180) discloses clearly that they fixed their calculation of damages upon the basis of $4 per ton in the price of the seed, and 15 tons as the minimum amount for a carload of seed under the undisputed evidence in the case, a calculation of $4 a ton damages on 45 tons of seed. It clearly appears, therefore, that the jury based their calculations upon the minimum capacity of a car. There is nothing here of which the appellant can complain. Notwithstanding any uncertainty, appellant was bound at least to deliver as much as three cars of the smallest capacity. — Ind. Co. v. Herrman, 7 Ind. App. 462, 34 N. E. 579. We, therefore, find no error in the record of which this appellant can complain, and the judgment of the court below is accordingly affirmed. Affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.