Opinion
1 Div. 392.
April 29, 1926. Rehearing Denied January 6, 1927.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Harry T. Smith Caffey, of Mobile, for appellant.
The agreement for exclusive agency was an independent covenant and not a condition precedent to liability for the agreed price of the goods. Breach of that covenant will not support a rescission of the contract. Springfield Seed Co. v. Walt, 94 Mo. App. 76, 67 S.W. 938; 13 C. J. 567; Thornton v. Wynn, 12 Wheat. 184, 6 L.Ed. 595; Lyon v. Bertram, 20 How. 149, 15 L.Ed. 847; Hafer v. Cole, 176 Ala. 247, 57 So. 757; El Paso S.W. R. Co. v. Eichel (Tex.Civ.App.) 130 S.W. 922; Williston on Contracts, § 872. If the acceptor of a nonnegotiable bill of exchange makes any representation to the purchaser, whether it be contained in the acceptance or be given by parol, by which he induces the purchaser to believe that the acceptance will be paid at its maturity, or payment will be denied only in a certain event, he cannot thereafter refuse payment upon some other pretext, but must abide by his representation in good faith. 21 C. J. 1143; Johnson v. Glasscock, 2 Ala. 519; Drake v. Foster, 28 Ala. 649; Plant Co. v. Voegelin, 30 Ala. 160; Brown v. First Nat. Bank, 103 Ala. 123, 15 So. 435. The testimony bearing on the defenses was oral, and its credibility was for the jury; the general charge with hypothesis was improperly given. Brown v. Mobile Elec. Co., 207 Ala. 61, 91 So. 802; Dorough v. Ala. Power Co., 200 Ala. 605, 76 So. 963; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Scott v. State, 110 Ala. 48, 20 So. 468; Davidson v. State, 63 Ala. 432. A mere breach of the contract by one party does not of itself terminate the contract, but merely confers upon the other party the right either to rescind or waive the breach. If he waives the breach, he must himself perform. Lowy v. Rosengrant, 196 Ala. 337, 71 So. 439.
Gordon Edington, of Mobile, for appellee.
The condition upon which the acceptance was given was dependent and not an independent condition; and, until fulfilled, no obligation rested on defendant. Wise v. Sparks, 198 Ala. 96, 73 So. 394; Mobile Elec. Co. v. Nelson, 209 Ala. 554, 96 So. 713; McCormick v. Badham, 191 Ala. 343, 67 So. 609. Plaintiff's replications were not sufficient. Minge v. Clark, 190 Ala. 388, 67 So. 510; Clancy v. Taylor, 12 Ala. App. 557, 68 So. 522; H. A. B. R. Co. v. South, 112 Ala. 642, 20 So. 1003; Bank v. Steiner, 168 Ala. 243, 53 So. 172.
The complaint in this case contained two counts, the first being upon a negotiable instrument, and the second upon a nonnegotiable trade acceptance, which is set out in hæc verba. The first count was practically abandoned, but, if not, it should or could well be upon the next trial. After many special pleas, and we might add that some of them were unnecessary repetitions, and after overruling the plaintiff's demurrers thereto and sustaining the defendant's demurrers to all of the plaintiff's special replications, the evidence was taken and the court gave the general affirmative charge for the defendant.
Counsel for the appellee, with commendable candor, concede that as there was a conflict in the evidence as to the other pleas, the action of the trial court in giving said charge can be justified only upon the theory that pleas 6 and 9, one or both, were proved without dispute and upon the further condition that said pleas, or either of them, were not subject to the plaintiff's demurrers thereto, and that the defendant's demurrers were properly sustained to the plaintiff's replications thereto. We do not think that either of said pleas 6 or 9 was subject to the plaintiff's demurrers. We also think that most of the plaintiff's replications were either faulty or provable under the general replication, except replication 4. As we understand replication 4, it sets up a waiver both as to a failure to ship the goods before the 1st of October, as well as a prompt execution and return of the contract as accompanying the order and trade acceptance sent to the "Keller Heating Company" on June 20, 1923.
Since this case must be reversed, we think the pleading can be somewhat simplified upon the next trial, though we wish to suggest that, whatever the previous oral agreement may have been, the trade acceptance was sent in conditionally, and in order for the defendant to be liable thereupon it is necessary for the plaintiff to show a compliance with the conditions outlined when the order and acceptance were sent in June 20, 1923, or a legal waiver of same, and, the acceptance being nonnegotiable, the plaintiff, in effect, stood in the shoes of the vendor the "Keller Company." We do not mean to hold that, under some circumstances, the acceptor or indorser of a nonnegotiable paper cannot by his conduct estop himself from setting up defenses which are available to the original debtor, but we do not think that the recitals in the trade acceptance should be so narrowly construed as to preclude this defendant from setting up a failure to make it the sole agent for handling and selling the heaters; it says for goods sold, and that is broad enough to include the terms and conditions of the contract of sale.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, GARDNER, and MILLER, JJ., concur.
On Rehearing.
Upon a reconsideration of this case, the court is of the opinion and so holds that the defendant's special plea 9 was subject to ground (a) of plaintiff's demurrer 1. It does not aver when the agency was to be secured, when it was to begin and terminate, or that the defendant was ready, able, and willing to accept said agency. The trial court erred in not sustaining plaintiff's demurrer to this plea.
The other special pleas were not subject to the plaintiff's demurrer.
We are still of the opinion that the trial court erred in sustaining the defendant's demurrer to the plaintiff's replication 4 to defendant's pleas 2, 3, 5, 6, 7, 8, and 10 as answers to the second count of the complainant.
The former opinion is, to this extent, modified, and the application for a rehearing is overruled.
SAYRE, GARDNER, and MILLER, JJ., concur.