Farmers C. O. & T. Co. v. Ward , 170 Ala. 491 ( 1910 )

SIMPSON, J.

This suit is by the appellee, against the appellant, for a. breach of the contract set out in the statement of the case by the reporter.

The brief of appellant groups the first six assignments of errror, which raise the two questions:' '-(1) That the several counts were subject to the demurrer because they failed to aver' that the defendant was able to secure cars; and (2) because they failed to aver-a willingness and ability 'on the part of the plaintiff to take and pay for the hulls, during the period when they should have been offered.

The statement in the contract, “Shipment as cars are secured,” is but the statement of what would be the legal effect of the contract, without those words, to wit, that shipments were to be made as-soon as transportation could be secured, and if the cars could not be secured that was a matter of defense to be set up and proved by the defendant, and the demurrer was properly overruled.—Raisin Fertilizer Co. v. J. J. Barrow, Jr., Co., 97 Ala. 694, 697, 12 South. 388; 19 Ency. Pl. & Pr. 74.

On the second point, the demurrer is that “plaintiffs fail to allege that, in the event the defendant shipped said hulls, plaintiff was ready and willing to pay for the same.” This demurrer does not raise the question argued in the brief of appellant. There was no obligation on the plaintiff, under the. contract, to be able, ready, and willing to pay for the hulls when “shipped,” but only when they had been delivered “f. o. b. cars at ■Selma,” and a sight drift “free of exchange” had been presented. ' Hence the court cannot be placed in error for overruling this demurrer.

There was no error in sustaining the demurrer to the third plea. It is not the law that a failuré to pay for one installment of goods agreed to be 'shipped, ipso facto, annuls the contract, and said plea does not allege that the defendant did elect to rescind the contract.—Elliott v. Howison, 146 Ala. 569, 584, 40 South. 1018.

There was no error in overruling objections to the testimony of Carlton Ward, as to the ability and willingness of the plaintiff to receive and pay for the hulls, if they had been delivered.. The -witness testified .that he “ha.d the general. charge of. their cotton seed hull and meal department,” had authority to buy, contract for, and pay for hulls, that he had personal knowledge of the financial condition of the firm, and that he knew “that plaintiffs were always ready, able, and willing to take said hulls.”

The matter testified to was a collective fact, known to the witness, to which he could testify, and the court ruled more favorably to the defendant- than was required, in excluding said testimony as to the time when the witness was absent from Selma, traveling for the firm, as it was not necessary for him to remain there all the time, in order to know the facts connected with his particular department.

There was no error in sustaining the objection to the question to said witness, on cross-examination, as to what warehouse facilities the plaintiff had for storing the hulls. The plaintiff had a right to the delivery of the hulls, whether it stored them, sold them to other parties, or did or did not do anything else with them.

There was no error in refusing to give the general charge in favor of the defendant. The contention is rather hypercritical that there was a variance, because the complainant alleged that the plaintiffs “accepted” the contract, and that the proof showed that they signed a duplicate and delivered it to the defendant.

The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur. ■ .•