Johnson v. Allen

78 Ala. 387

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

CLOPTON. J.

By the contract, for the breach of which this action is brought by appellees, the defendants agreed to, sell to the plaintiffs five hundred tons of coal, at one dollar and a half per ton, to be delivered on the cars at Coaling, as the plaintiffs might order, between September 12, 1882, and March 31,1883; provided that not more than two hundred tons be ordered in any one month, if the defendants find it inconvenient to ship more. There are other stipulations in the contract, which, however, have no bearing upon the question raised by the record. The plaintiffs demanded of the defendants the delivery of two hundred tons during each of the months of September, October; November, and December, 1882, and the month of January, 1883. The defendants delivered some coal during each of the months mentioned, but not as much as two hundred tons in any one month; and about the first of February, 1883, refused to deliver any more coal. The plaintiffs paid the defendants for the coal actually delivered. The defendants were the only persons dealing in and mining coal at Coaling, and coal could not be purchased at that place from any other persons. The defendants knew that the coal was to be used in Tuskaloosa/at which place the plaintiffs were dealing in coal.

The contract is an executory contract for the sale of five hundred tons of coal — a fixed quantity — at an agreed price, to be delivered at such times and in such quantities as the plaintiffs might order, between September 12, 1882, and March 31, 1883; but the defendants were not to be required to deliver exceeding two hundred tons in any one month. The contract was made September 12, 1882; and as we construe it, when the first demand for the delivery of two hundred tons w^as made, the defendants w'ere entitled to one month from the time of the making of the contract, in which to make the delivery. The parties and the court, however, seem to have understood the contract as meaning that, when the first demand was made, it was the duty of the'defendants to deliver the two hundred tons during the month of September; and perhaps it is due to them, in considering the questions presented by the record, that we treat their interpretation as accepted for the purpose of this appeal, since the rules of law applicable to and controling the case, as to the questions we are authorized to consider, are not varied by the construction of the contract in this respect.

When the plaintiffs ordered the delivery of two hundred" tons in the month of September, the contract must be considered the same as if it had been written therein that the defendants agreed to deliver that quantity 'during that month ; and so of the order for each succeeding month. The contract is for the sale of a determinate quantity of coal, to be delivered by installments; the plaintiffs waving the right and option to fix the installments, limited by the provision, that no installment or installments in one month should exceed two hundred tons; and the orders were to be given between specified dates. A delivery of only a part of the quantity ordered, or a failure to deliver any part of it, does not terminate the contract, unless the plaintiffs saw proper to so treat and regard' it. The contract continues, as to future orders, during the period stipulated. Each delivery is considered in the nature of a separate and distinct contract. J

In Deming v. Kemp, 4 Sand. (N. Y.) 147, the contract was for the sale and delivery of carbon during the fall and winter following, at various times, as the defendant might require, not exceeding forty tons, at 2f- cents per pound, in parcels of twenty thousand pounds. It was held, “ that these separate deliveries are to be considered in their nature as separate contracts.” Cookburn, C. J., in reference to a contract for the sale of two thousand tons of iron, “ delivery in monthly quantities over 1871, or sooner if required, the delivery of some of the monthly quantities having been postponed at the request of the vendee, who afterwards, in December, 1871, demanded the delivery of the residue of the two thousand tons,” said: “ I think the postponement had the effect of carrying the period over the year 1872, but that the defendants could not be called upon to deliver 1,000 tons of iron at one time, but only in such quantities as was originally provided for.” — Tyers v. R. & F. Iron Co., 10 Ex. 195. And in Wood’s Mayne on Damages, 251, it is said : ‘, But, where the contract is to deliver goods at certain periods, in specified quantities, this is in fact a set of different contracts.”

The plaintiffs having fixed, by their orders, the times and quantities of delivery, and the contract having, therefore, to be considered a's for the delivery at specified periods, in specified 'quantities, the failure to deliver two hundred tons in the month of September was a breach of the contract, occurring on the last day of the month, the defendants having the entire month in which to deliver. The plaintiffs, it is true, had the right to waive the whole, or any part of the September deliveryj;“but, by waiving, they did not acquire the right to carry it into Optober, and order two hundreds tons for that month, and demand also the deficiency in the September delivery. This -would be in opposition to the express terms of the contract, that the delivery, required in any one month, shall not exceed two hundred tons. When the plaintiffs ordered the delivery of two hundred tons in each of the months of September, October, and November, they fixed the periods and quantities of delivery, and exhausted their right to order. To allow a vendee, who has the right to determine the times and quantities of, delivery, the right to change at pleasure his orders, when once made, may result in putting the vendor to great disadvantage and injury, and to place him a situation where a breach of his contract may necessarily occur. The presumption should be, that a vendor, intending in good faith to fulfill his contracts, will arrange to meet the orders of his vendee, having been once given, as well as his engagements with others. As a postponement of the early deliveries by agreement, or on request of either party, without a provision that the installments are to accumulate, will operate to carry the postponed deliveries over to á month, in which the entire delivery will not exceed two hundred tons; a fortiori, -the plaintiffs can not, at their will, shift the breaches from time to time, and thus enable themselves to select a period for the occurrence of the breach, when the pi'iceu of coal are rated at the highest during the season.

It is the general rule, that on the vendor’s failure to deliver the goods according to the contract, the measure of damages is the difference between the contract price and the market price, at the place where, and the time when they should have been delivered. — 2 Benj. on Sales, § 1335; Sleuter v. Wallbaum, 45 Ill. 44; Worthen v. Wilmot, 30 Vt. 555; Grand Tower Co. v. Phillips, 23 Wal. 471; Rose v. Bozeman, 41 Ala. 678; Miles v. Miller, 12 Bush, 134. There are cases in which special damages may be recovered; but no special damages are claimed in this case.

As there was no market price for coal at Coaling, the place of delivery, except that made by the defendants, and as the defendants knew that the coal was purchased to he used in Tuskaloosa, this being the nearest market, the measure of damages is the difference between the market price in Tuskaloosa and the contract price, with the expense of transportation added. Grand Tower Co. v. Phillips, 23 Wall, supra; Ward v. Reynolds, 32 Ala. 384; Foster v. Rodgers, 27 Ala. 606.

j Where the goods are to be delivered by installments, and / there is a failure to deliver two, or more, or all of the install-j tneuts, the proper measure of damages is the sum of the differ- < enees between the contract and market prices, of the quantity of each installment not delivered, at the respective times of delivery, and the place of delivery; each of the failures to deliver constituting a separate and distinct breach. In an action on a contract for the sale of five hundred tons of iron, to be delivered in about equal quantities in the months of September, October and November, 1871, the vendor having failed to deliver any iron, it was held, that the measure of damages was the sum of the'three differences between the contract and market prices of one-third of the entire quantity of iron at the end of the three months respectively. — Brown v. Muller, 7 Ex. 319.

In Roper v. Johnson, 8 C. P. 167 (L. R.), the defendant agreed to sell to plaintiffs a fixed quantity of coal, at an agreed price, to be delivered during the months of May, June, July, and August. The defendant requested the plaintiffs, on the last of May, to consider the contract cancelled, to which the plaintiffs did not assent; and the defendant having refused, in June, to deliver any coal, the plaintiffs brought the action for the breach, on the 3d of July. The evidence showed, that the price of coal had risen during the whole of the month of May, and was still rising at the time of trial, which was in August. It was held : “that, in the absence of evidence on the part of the defendant that the plaintiffs could have obtained a new contract on such terms as to mitigate their loss, the true measure of damages was the sum of the differences between the contract price and the market price at the several periods of delivery, notwithstanding that the last period had not elapsed when the action was brought, or when the cause was tried.” Wood’s Mayne on Dam. § 206; 2 Benj. on Sales, §§1331, 1332, 1333; Shreve v. Brewton, 51 Penn. St. 176.

Although one of the propositions asserted in the general charge is in conflict with these rules, we can not reverse on that account. The charge contains several separate and sever-able clauses, and the exception is to the entire charge. Some parts of the general charge are free from error. In such case, .the exception must point out the part of the charge supposed to be erroneous. — Farley v. State, 72 Ala. 170.

The court, however, should have given the first instruction requested by the defendant. It asserts the legal propositions, that on the order of plaintiffs for the delivery of two hundred tons of coal, in each of the first and second months of the contract, it was the duty of the defendants to have delivered thé coal for each of said months during the continuance of each, and the failure to so deliver was a breach- of the contract; and that “ the measure of damages is the price of the coal at the time of the breach of said contract, and not at a subsequent time, from which is to be deducted the price which plaintiffs' were to have paid for said coal, if it had been delivered.” The charge, construed as an entirety, and in connection with the evidence, asserts the general rule correctly. It might have been prepared with more specific reference to the special aspects of the case, and so as to give the jury a clearer and more definite understanding of the rules by which they were to be governed in assessing the damages; but it was not calculated to mislead the jury, in favor of the defendants. The qualifying words, “ not at a subsequent time,” correctly restricted the inquiry of the jury, in assessing the damages, to the price of coal at the time of the breach. To permit a departure will give the jury a latitude as to the amount of damages, whereby, selecting the time of highest price, they may impose damages in their nature exemplary. rJ he purpose of the rule is to allow the plaintiffs a just compensation for the loss sustained, without regard to the motive of the defendants, and notwithstanding they offer no excuse for their failure to fulfill the terms of a contract, which they were morally and legally bound to perform.

' According to the rules herein expressed, when the plaintiffs ordered the delivery of two hundred tons in each of the months of September and October, they were not authorized to order more than one hundred tons to be delivered in November. But it appears that the defendants delivered one hundred and twelve tons in November, and also made deliveries in December and January following, which were accepted by the plaintiffs. Their acceptance of these subsequent deliveries was a waiver, qyro tanto, of the antecedent breaches. We have had some hesitation in determining what disposition should be made of these subsequent deliveries. It seems that the rule, regulating the appropriation of payments, furnishes the closest and a sure analogy; that is, where there are several demands, or a running account consisting of several items of debit and credit, a general payment, in the absence of any specific appropriation by either party, will, ordinarily, be applied to the discharge of the demands in the order of maturity, or of the items of debit antecedently due in the order of the account, unless facts exist showing that, according to the justice and equity of the case, a different application should be made.- — 2 Green, on Ev. § 533; Harrison v. Johnston, 27 Ala. 445. By this rule, the excess of the November delivery, and the deliveries in December and January, should be appropriated to the satisfaction, first, of the breach in September, and then of the breach in October. We are unable to do more than lay down a general rule, as, on another trial, the court will, no doubt, adopt the construction allowing the defendants until the 12th of October to fill the order for the first month, and until the 12th of November to fill the 'order fo'r the second month ; and the record does not enable ns to ascertain the specific dates of the different deliveries in October and November.

Reversed and remanded.