Whitehead v. Jasper Oil & Fertilizer Co.

77 So. 42, 200 Ala. 668, 1917 Ala. LEXIS 598

• Court: Supreme Court of Alabama
• Decided: November 15, 1917
• Docket: 6 Div. 633.
• Status: Published

Opinion

GARDNER, J.

The contract for the sale of the cotton seed called for an aggregate of ■50 tons, in carload lots f. o. b. Winfield, one ear to be loaded at once (the date of the contract being January 15, 1915), and the other loaded within ten days or two weeks. Upon' the trial of the cause the rule as to the measure of damages was recognized to be the difference between the agreed price and the market value of the cotton seed at the time and place of delivery, with interest. Ward v. Cotton Seed Products Co., 193 Ala. 101, 69 South. 514; Gwin v. Hopkinsville Milling Co., 190 Ala. 346, 67 South. 382; Georgia Cotton Oil Co. v. Carlisle Seed Co., 75 South. 984, ante, p. 226.

If the evidence for the plaintiff is to be accepted, the sale contract was entered into without conditions, and was breached without excuse.' On the other hand, the defendant insisted that there were certain conditions to the contract which were not complied with and which justified him in its rescission. These issues were fairly submitted to the jury with proper instructions from the court for their determination, and no questions arose or were argued in regard thereto. The evidence for plaintiff tended to show that the price of cotton seed, when bought in carload lots, had advanced from $25 to $30 per ton at the time and place of delivery. Defendant offered proof to the contrary. One Perry,- a witness for defendant, testified as to numerous purchases of cotton seed in that particular community from different parties — the prices ranging from $20 per ton to as high as $26. To this evidence there was no objection. The purchases made by witness Perry were in what is called wagon-load lots, and his testimony discloses that cotton seed bought in wagonload lots was cheaper than thait in carload lots.

[1] The witness was engaged in the business of buying seed, and had carbon copy entries of the various purchases of these seeds in wagonload lots, showing the amount purchased and the price thereof; but these entries were excluded on motion of plaintiff, and this action of the court constitutes one of the assignments of error. The witness had been permitted to testify fully as to his purchase of cotton seed, and the price paid therefor, and the evidence offered was merely cumulative to that to which witness had just testified. The contract here involved was for the sale or purchase of cotton seed in carload lots; and the evidence shows without dispute, there was a difference in the market value of seed in that community when purchased in carload lots and in wagonload lots; the latter being Cheaper. The entries related to the wagonload lots and to details of the business of the witness not connected with this transaction. We do not think, therefore, under these circumstances, reversible error can be predicated upon the action , of the'court in excluding the entries so offered by the witness Perry.

[2] Only one written charge seems to have beén given for plaintiff, and it is insisted by defendant that this was reversible error, in that it failed to hypothesize one of the conditions insisted upon by defendant. The charge, with proper hypothesis, stated .the conditions on which plaintiff was entitled to a recovery, and was not subject to the criticism of counsel for appellant.

[3] The objection to tbe question asked witness Roberts as to tbe price of seed pointed out that the inquiry was not confined to the time and place of delivery of the seed in question, and in addition thereto the testimony of this witness disclosed he was not familiar with the market value at that time or place, and therefore no reversible error was committed in sustaining the objection.

[4] The evidence for plaintiff clearly shows an unconditional agreement for the sale of the cotton seed at $25 per ton, and an advance of several dollars per ton at the time and place of delivery. It is quite clear, therefore, that the insistence that defendant was entitled to the affirmative charge is without merit. There are a few questions as to the evidence, which are argued by counsel, but we do not consider them of sufficient importance for separate treatment here. If it be conceded that some of tbe testimony offered by plaintiff was subject to the objection of immateriality, and could well have been excluded, yet, from an examination of the same by this court in consultation, we are persuaded that' it relates to matters of so little importance as to he harmless, and without bearing upon the result of this cause.

We find nothing in any-of the questions here argued by counsel calling for a- reversal, and the judgment- of the court below will accordingly he affirmed.

Affirmed.

ANDERSON, O. X, and McCLELLAN and SAYRE, JJ., concur.