Opinion
6 Div. 816.
March 20, 1941.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
A. J. Bowron, Jr., and Bradley, Baldwin, All White, all of Birmingham, for appellant.
On demurrer a complaint must be construed most strongly against the pleader. Alabama Great Southern R. Co. v. Cardwell, 171 Ala. 274, 55 So. 185. Facts must be averred with certainty and not left to rest in inference. Sibley v. Kennedy, 224 Ala. 354, 140 So. 552; Kennedy v. McDiarmid, 157 Ala. 496, 47 So. 792. The complaint is subject to demurrer for failure to aver unambiguous and positive acceptance of alleged contract on part of plaintiff. McGowin Lbr. Exp. Co. v. R. J. B. F. Camp Lbr. Co., 192 Ala. 35, 68 So. 263. The contract the basis of count in special assumpsit must be mutually obligatory, or it will be binding on neither for want of mutuality. Bentley-Beale, Inc. v. Wesson Oil Snowdrift Sales Co., 231 Ala. 562, 165 So. 830. In action for breach of alleged special contract, plaintiff must aver his readiness, willingness and ability to perform. Sloss-Sheffield Steel Iron Co. v. Payne, 192 Ala. 69, 68 So. 359. The alleged contract is a mere preliminary negotiation. A.L.I. Restatement of Contracts, § 25; 12 Am.Jur. 526. Defendant's requested charge (assignment 6) was erroneously refused. Patterson Edey Lbr. Co. v. Daniels, 205 Ala. 520, 88 So. 657; Oden-Elliott Lbr. Co. v. Daniel-Gaddis Lbr. Co., 210 Ala. 582, 98 So. 730; Williston on Contr. § 1384.
John A. Darden, of Goodwater, for appellee.
The complaint sufficiently states a cause of action. Armour Pkg. Co. v. Vietch-Young Produce Co., Ala.Sup., 39 So. 680. The contract was written by defendant and accepted by plaintiff, and was executed on the part of plaintiff. Cliff Fay Bro. v. Dawkins, 138 Ala. 232, 35 So. 41. Demurrer was properly overruled. Fike v. Stratton, 174 Ala. 541, 56 So. 929; Smith v. Davis, 150 Ala. 106, 43 So. 729; Baxley v. Tallassee M. R. Co., 128 Ala. 183, 29 So. 451. Acceptance of the offer by plaintiff and his performance are shown. Stephenson Brick Co. v. Bessemer Engineering Const. Co., 218 Ala. 325, 118 So. 570; Amer. Tie T. Co. v. Naylor Lbr. Co., 190 Ala. 319, 67 So. 246. The charge given for plaintiff was predicted upon all of the evidence and was properly given. Jordon v. Emanuel, 167 Ala. 176, 52 So. 310. Defendant's requested charge was faulty as to measure of damages and was properly refused. Cato v. Williamson, 209 Ala. 477, 96 So. 321.
Special assumpsit by the appellee against appellant for breach of a dependent covenant or agreement wherein the plaintiff agreed to manufacture and deliver to the defendant cross-ties at Hollins, Alabama, of certain specifications and at an agreed price. Counts H, X and Y of the complaint on which the case was submitted to the jury substantially follow Form 9, prescribed by § 9531 of the Code 1923, for complaints "on a dependent covenant or agreement," and they were not subject to the stated grounds of demurrer, which were overruled without error. Davis v. Badders Britt, 95 Ala. 348, 10 So. 422.
Construing the averments most strongly against the pleader, yet taking as true the facts well pleaded, the contract declared on was an executed contract on the part of the plaintiff and executory on the part of the defendant, who breached the contract by refusing to receive the cross-ties and pay for the same. Sloss-Sheffield Steel Iron Co. v. Watson, 239 Ala. 416, 194 So. 887.
The plaintiff's evidence tended to show that plaintiff cut and manufactured gum ties sufficient to constitute a car load — minimum weight — 24,000 pounds, conforming to the specifications and conditions set out in the contract; had a car placed and men ready for loading the ties, and that the defendant through its authorized agent rejected the ties for the reason there was not a minimum load.
The defendant's evidence, on the other hand, tended to show that some of the ties did not come up to the required specifications in the contract, and that there was not sufficient number to constitute a minimum car load, and for said reasons the defendant refused to receive them.
The court, therefore, did not err in giving special written charge the predicate for the fifth assignment of error.
Special charge, the predicate for assignment of error six, does not correctly state the rule for the admeasurement of the damages under the facts in this case. Patterson Edey Lumber Co. v. Daniels, 205 Ala. 520, 88 So. 657.
The court did not err in overruling the defendant's objection to the testimony going to show the character, number and weight of the crossties remaining in the stacks at Hollins two years after the defendant rejected them. While the evidence may have been of little weight standing alone, it was not irrelevant to the issues and its weight was for the jury, considered along with all other evidence in the case.
After full consideration of the evidence, after allowing all reasonable presumption of the correctness of the verdict we can not affirm that the preponderance of the evidence against the verdict is so decided as to clearly convince us that it is wrong and unjust. Cobb v. Malone Collins, 92 Ala. 630, 9 So. 738. In fact, there was evidence which, if believed, justified the verdict. Southern Railway Co. v. Kirsch, 150 Ala. 659, 43 So. 796.
Affirmed.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.