Opinion
4 Div. 227.
November 5, 1925.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Mulkey Mulkey, of Geneva, for appellant.
There can be no contract of sale until all terms are agreed upon. 35 Cyc. 55. In order to recover in this case, it was necessary that plaintiff sue for a breach of the contract, and the common counts will not suffice.
J. J. Morris, of Samson, for appellee.
When the defendant gave the order, and the plaintiff delivered the goods to the carrier, the sale was complete. In the absence of agreement as to time of payment, it will be presumed to have been a cash transaction. Robinson v. Pogue, 86 Ala. 261, 5 So. 685; 35 Cyc. 55. The suit was properly brought on the common counts. 76 Ala. 163.
The Cadick Company, millers in Indiana, shipped to the Mizell Company at Samson, in this state, 30 barrels of flour, and drew on them for the price, bill of lading attached. The consignee company refused to accept the flour, their assigned reason being that they could not pay cash for it. The milling company refused to accept a promise of deferred payment, and, after a time, sold the flour for account of the purchaser. On appeal to the circuit court the case between the parties was tried by the court without a jury and the milling company had judgment.
The evidence warranted a finding that plaintiff had shipped the flour in agreement in all respects with a contract entered into between defendant and plaintiff's agent at Samson. The sale was complete at the point of shipment, although the price was not to be paid until the flour reached its destination. Robinson v. Pogue, 86 Ala. 261, 5 So. 685. Nothing remaining to be done save payment of the agreed purchase price, plaintiff might maintain an action on the common counts, or in special assumpsit for a breach of contract.
The only defect we find in plaintiff's case is that, when it undertook to resell the flour for account of defendant, it failed to give defendant notice of its intention so to do. Plaintiff had the right to sell the flour. 2 Williston on Contracts, § 545. In all other respects the resale appears to have been fairly conducted; but notice of the intention to resell should have been given to defendant to the end that it might have opportunity, if it so desired, to suggest the mode and time and place of such sale. Johnson v. Carden, 187 Ala. 142, 65 So. 813; Penn v. Smith, 98 Ala. 560, 12 So. 818; Starr Jobbing House v. May Hosiery Mills, 207 Ala. 620, 93 So. 572; 2 Williston on Sales, § 548. And plaintiff's failure to give notice may be shown under the general issue. Southern States Co. v. Long, 15 Ala. App. 292, 73 So. 148. However, plaintiff was allowed to show the fact of resale without any objection that no notice had been given, nor was the trial court's attention otherwise called to the omission, and the court is of opinion that it is now too late to raise the objection for the first time.
Appellee claimed damages in an amount equal to the difference between the contract price and the sum realized on resale. But that was not an exact measure of the damage shown. On the one hand, some of the flour was wetted by reason of a leak in the roof of the building where it was stored by appellee pending resale; on the other hand, appellee was entitled to charge in its account against the buyer all reasonable expenses incurred in making the resale. 2 Williston, § 552. The charge for storing pending reasonable bona fide efforts to resell was reasonable.
As well as we can ascertain from the evidence shown by the record, the trial court deducted the value of the damaged and unsalable flour from the prima facie amount of damages, added reasonable expenses, and gave judgment for the sum thus ascertained. In this the court proceeded correctly, and the result must be affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.