Opinion
7 Div. 49.
November 11, 1920.
Appeal from Circuit Court, Talladega County; A. B. Foster, Judge.
Harrison Stringer, of Talladega, for appellant.
Custom cannot overturn an express contract for various terms, or make the legal rights or liabilities other than they are by the common law. 36 Ala. 449; 147 Ala. 602, 41 So. 182; 179 Ala. 505, 60 So. 298; 191 Ala. 378, 68 So. 63; 191 Ala. 243, 68 So. 43. It was not competent to show previous dealings between the same parties. 35 Cyc. 121, 122; 8 Ala. App. 639, 62 So. 330. The demurrers should have been sustained to pleas 8 and 9. 10 Ala. 516; 67 Ala. 549; 121 Ala. 356, 25 So. 828; 162 Ala. 380, 50 So. 332; 184 Ala. 236, 63 So. 982; 157 Ala. 521, 48 So. 105.
Knox, Acker, Dixon Sims, of Talladega, for appellee.
Oral agreements may be made, with the stipulation that they shall not be binding unless put in writing, and the contract does not become complete or binding until reduced to writing. 91 Ala. 589, 8 So. 800; 117 Ala. 484, 23 So. 67; 26 Okl. 209, 109 P. 225, Ann. Cas. 1912B, 127. Pleas 4, 5, and 7 were good. 10 R. C. L. 1030; 6 Ency. Dig. Ala. § 306. Pleas 8 and 9 were good. 147 Ala. 606, 41 So. 182; 13 C. J. 271.
The verdict of the jury was limited to a finding for defendant on its plea of set-off. The pleas of set-off admitted the validity of the contract sued on by plaintiff, and admitted defendant's liability to answer for the damage proximately resulting from its breach of that contract, as charged in the complaint. Grisham v. Bodman, 111 Ala. 194, 199, 20 So. 514; St. Louis, etc., Co. v. McPeters, 124 Ala. 451, 455, 27 So. 518.
This verdict was therefore, in legal effect, a finding for plaintiff on the cause of action declared on in the complaint; and a finding also for defendant on its counterclaim presented against plaintiff by way of set-off in pleas 8 and 9. This being so, it is immaterial what errors may have been committed by the trial court with respect to other special pleas in traverse or in confession and avoidance, or with respect to testimony relating to plaintiff's claim and not affecting the amount of damages recoverable thereon.
We shall accordingly omit all discussion of those matters, since they did not prejudice plaintiff's recovery.
The pleas of set-off were sufficient in their averments of an offer by defendant to deliver to plaintiff the yarns which they contracted to buy. Such an offer to actually deliver, rejected by the vendee, establishes a breach of the contract and entitles the vendor to recover for the damage proximately suffered therefrom. Where an actual tender of the goods, or an offer to actually deliver them, is shown, accompanied by the vendee's refusal to accept them, the vendor need not go further and aver that he was ready, able, or willing to deliver. Long v. Addix, 184 Ala. 236, 63 So. 982; Moss v. King, 186 Ala. 475, 65 So. 180, and cases therein cited.
But, apart from the rule just stated, these pleas do in fact allege also that, at the time of defendant's offer to deliver, it stood ready to deliver — which imports both ability and willingness to do so.
No other ground of the demurrers being insisted upon in argument, other objections to the pleas must be regarded as waived.
There was no prejudicial error in allowing defendant's president to state, by way of preface, that he had a contract to deliver yarns to plaintiff in 1914, in view of his further testimony showing the existence and terms of a valid contract to that effect.
He was also properly permitted to state the contents of a letter from defendant which he testified had been destroyed ante litem motam and could not be found after proper search. Whitsett v. Belue, 172 Ala. 256, 54 So. 677. Negligent destruction of a document is no bar to its proof by secondary evidence. Rodgers v. Crook, 97 Ala. 722, 12 So. 108. And, though its fraudulent spoliation would exclude secondary evidence, such spoliation will not be presumed, but must be made to appear.
It is true, as urged by appellant, that when default is made by a vendor in the delivery of goods in installments, the measure of damage is the difference between the contract price and the market price at the respective times of delivery. Johnson v. Allen, 78 Ala. 387, 56 Am. Rep. 34. But that rule is not applicable to a case like this, where, as appears without dispute, plaintiff went into the market a few days after defendant's repudiation of the contract, and bought the same yarns all at once. He might have waited until the successive dates for delivery arrived, and then separately purchased the amounts of each installment, in which case the rule of Johnson v. Allen, supra, would have governed. But in view of his actual procedure, the most that he can claim is the difference between the contract price and the price he had to pay. Hence there was no prejudicial error in excluding the proffered evidence of the market price of such yarns at a time several weeks after defendant had purchased all the yarns elsewhere.
None of the pertinent assignments of error which are argued by counsel can be sustained, and the judgment of the trial court will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.