Nashville, Chattanooga & St. Louis Ry. v. Wood , 171 Ala. 382 ( 1911 )

SOMERVILLE, J.

Both counts of the amended complaint claim damages for the refusal of the defendant to accept a lot of cross-ties, for which, as alleged, defendant had agreed to pay plaintiff 38 cents for the first-class and 19 cents for second-class ties. „ Under this averment as to the agreed price, it was permissible for plaintiff to establish such price by either express or implied agreement; but he could not prove a quantum valebant, in order to fix the price of the ties. It is conceded that there was no express agreement by which the purchase price of the ties was fixed, and the material question presented by the assignments of error, especially those predicated upon the refusal by the trial court to give the general affirmative charge in favor of the defendant, is whether there was any evidence before the court tending to show by implication that the minds of plaintiff and defendant met and agreed upon the price averred in the complaint , viz., 38 cents for first-class and 19 cents for second-class ties. If there is no such evidence, it is obvions that the trial court erred in refusing to give the ■affirmative charge for defendant.

The testimony for plaintiff tends to show that one ■John Lane, an agent of defendant, but- without authority to purchase ties, requested him to buy a lot of ties from •one Houser, and to inform one G. D. Hicks, defendant’s tie-purchasing agent, who lived at Tullahoma, Tenn., promising that he (Lane) would then take up the ties; that plaintiff did purchase 7,000 ties from Houser, and wired Hicks of the purchase; that a correspondence ensued between them relative to the Houser ties, resulting finally in the announcement by Hicks that he could not take the ties, as he could not get to Caperton’s Ferry (this correspondence will be set out in full by the reporter) ; that defendant’s agents took up 253 of the Houser ties at Cooley’s Landing and Cycamore Landing, for which plaintiff received pay at 38 cents for first-class ■and 19 cents for second-class ties; that several months previously said Hicks had sent to him a contract for his ■signature and return, providing for the purchase from lim by defendant of ties not higher up in the river than Buck Island at 35 cents for first-class and 17 cents for ¡second-class; that he did not sign that contract, because he would not undertake to deliver 5,000 ties within the river limits specified; that he thereafter furnished ties to defendant at 35 cents and 17 cents, but not under that contract; that he asked Hicks for a contract for ties -above Buck Island, which was refused; that,before the ■conversation with John Lane he had sold, and was then ■selling ties to defendant at 38 cents and 19 cents, but never any above Columbus City; and that defendant “was paying 38 cents and 19 cents for ties.” The evidence ¡shows without conflict that Columbus City is about 10 miles above Guntersville, Buck Island “a few miles above Huntersville” and below Columbus City, Cycamore Landing and Cooley’s Landing several miles above Columbus City and Caperton’s Ferry 40' or 50 miles above Columbus City. It further shows that to take a boat to Caperton’s Ferry, or “much above Columbus City,” would require two days for the trip, while to go to Columbus City would require only one day, and that the Houser ties were at various points on the river between Columbus City and Caperton’s Ferry. The 253 Houser ties taken and paid for by defendant were taken on or before February 28, 1906, and the ratification of Lane’s purchase by Hicks was on March 8, 1906, by the letter replying to plaintiff’s letter to Hicks, dated March 3, 1906. The Houser lot of ties had, before plaintiff bought them, been offered by Houser to defendant at 35 and 17 cents, and the offer declined by defendant, “because the ties were too far up the river.”

Do the foregoing facts either show, or permit any rational inference, that defendant agreed to pay for the Houser ties, all of which were located above Columbus City at distances ranging from a few miles to 40 or 50 miles, the price of 38 cents for ties of the first class and 19 cents for ties of the second class, as alleged in the complaint? If a sale be made without a specification of the price, or of any method by which it is to be subsequently determined, the law will imply a reasonable price; and this principle applies, it seems, to executory as well as executed sales. —Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; 24 Am. & Eng. Ency. of Law, 1036. In such a case, for the vendee’s refusal to accept the goods the vendor would have his action for damages; but, in the absence of proof that the seller has suffered some special damage, the recovery would be only for nominal damages. —24 Am. & Eng. Ency. Law, pp. 1115-1117, and cases cited. But, as we have seen, such is not the nature of the present case, and under the averments of this complaint the plaintiff cannot recover at all, unless .he shows an agreement by the defendant to pay the specified price: If any agreement has been shown, it is quite certain, not only that it did not fix any price, nor supply any means ■ for fixing it, but that there was no course of dealing, nor any previous dealings, between the parties from which it could be inferred that they understood and agreed that 38 cents and 19 cents, for first and second class ties, respectively, was to be paid for any ties above Columbus City. The distance of the ties up the river was an important factor in the value of the ties to the defendant, and determined the price it was willing to pay for them. It had already previously declined to buy these same ties from Houser at a price lower than now claimed by plaintiff, on the ground that they were too far up the river; and plaintiff himself testified that he had never before sold defendant any ties above Columbus City. Moreover, there was then pending between plaintiff and defendant a proposition on the part of defendant to buy ties below Columbus City at 35 cents and 17 cents; and, in relation to taking up these Houser ties, defendant’s agent, Hicks, was referring to this proposition, and requesting that it be signed and returned to him by plaintiff. - It is clear, therefore, that the evidence has no tendency whatever to show -any agreement as to price, as alleged in the complaint; and it results that the trial court should have given the general affirmative charge for the defendant as requested.

In this view of the case, it is not necessary to consider other assignments of error. For the error above pointed out, the judgment of the trial court must be reversed, and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and Anderson and Sayre, JJ., concur.