Central L. & T. Co. v. McClure L. Co. , 180 Ala. 606 ( 1913 )

McCLELLAN, J.

Plea 4 purported to be a plea of recoupment. The claim of plaintiff, for a definite sum, is conceded and must have passed into judgment unless the defendant (appellant) sustained the right he would assert in such plea. The court sustained plaintiff’s demurrer to plea 4, as amended July 12, 1911. The report of the appeal will contain a statement of its averments, aside from those .to be quoted. In the thus amended plea this allegation appears: “That is to say, said delivery, instead of being by September 15, 1909, was changed so that said lumber was to be delivered to defendant in no event sooner than, but according to the wishes of defendant, in or during the month of November, 1909, or within a reasonable time thereafter, as the case may be.” Therein the breach of the contract is thus averred: “And defendant avers that it on, to wit, December 28, 1909, notified plaintiff that it desired plaintiff to ship, .or begin to ship without delay, said lumber in accordance with the terms of said modified or changed contract or agreement, but defendant avers that plaintiff wholly failed and refused to ship and deliver to defendant, within a reasonable time thereafter, said lumber.” The report of the appeal will contain the six grounds of demurrer addressed to the'plea as thus amended.

Clearly the first, second, and third grounds of the demurrer were not well taken.

The plea, as thus amended, set forth an unambiguous contract; a contract not at all uncertain in its obligations. That the means or method by which the wishes of the defendant should be communicated to the plaintiff were not specified did not detract from the definiteness of the substantial elements of the obligations imposed by the contract.

The contract, as set forth in the amended plea, hinged the plaintiff’s obligation to deliver upon, and established as a condition to delivery by the plaintiff (after November 1, 1909), the wishes of defendant, which, under the latter alternative, must have been communicated by defendant to plaintiff within a reasonable time after November, 1909. It not appearing from the plea that delivery was desired by defendant during November, 1909 (the first alternative under the contract set forth), whether the breach averred was possible of committal depended primarily, under the latter alternative of the contract set forth, upon whether the defendant communicated to plaintiff its wishes, in .respect of delivery within a reasonable time after November, 1909. While the amended plea avers that “on, to wit, December 28, 1909,” the wishes of defendant in the premises were communicated to plaintiff, it does not appear from the plea that that communication of defendant’s wishes was made within a reasonable time after November, 1909. What a reasonable time is, when the facts are undisputed, is a question of law; and when pleading that action or nonaction within a reasonable time was or was not taken, facts (but not the evidence in ex-tenso) must be averred.—Continental Jewelry Co. v. Pugh, 168 Ala. 295, 53 South. 324, Am. Cas. 1912A, 657. Here the pleader affirms the communication of defendant’s wishes as of an uncertain date after November, 1909. The videlicet employed expressed the affirmative purpose of the pleader to leave this matter of time uncertain.—Henry v. McNamara, 114 Ala. 107, 22 South. 428. When the communication was made was, under the contract relied on, a subject of vital, material concern in respect of a breach vel non of that contract, for unless the communication was made within a reasonable time after November, 1909, there could have been no breach of the contract by the plaintiff. Manifestly the time when defendant’s wishes, in the premises, were communicated to plaintiff became and was of the essence of the contract. When such is the case, it must be particularly averred (3 Cyc. pp. 106, 107; Shields v. Sheffield, 79 Ala. 91), and peculiarly so when the breach sought to be asserted essentially depends upon the time action or nonaction was or was not taken.

While the amended plea was defective in the respecf that it did not appear therefrom that defendant conn municated its wishes, in the premises, within a reasonable time after November, 1909, we do not find any ground of demurrer talcing this particular point of objection thereto. Our statute so requires. — Code, § 5340.

The fault, as appears, lies in the predicate for breach of the contract by the plaintiff, and not in any uncertainty or indefiniteness in the contract defined in the amended plea. The only ground of demurrer alluding to the plea’s deficiency in this aspect is the sixth ground. That ground is general, not specific; and, since it cannot be assumed that the plea as amended was not capable of further amendment avoiding the indicated particular defect, reversal cannot be averted on the theory that no prejudice attended the ruling the court made.—Ryall v. Allen, 143 Ala. 222, 38 South. 851. Accordingly there was reversible error in sustaining the demurrer to the amended plea under consideration.

It is urged that no injury to defendant could have attended this ruling for that there was a variance or failure of proof upon evidence taken under issues made by the second amendment of plea 4 in respect of averments common to the first and second amendments of plea. The pleas amended the first and second times are not identical or substantially so. Hence the doctrine of error without injury, which appellee would, invoke, cannot avail to avert a reversal.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.