Crandall-Pettee Co. v. Jebeles & Colias Conf. Co. , 195 Ala. 152 ( 1915 )

THOMAS, J.

(1) If there is any evidence which tends to establish the plaintiff’s cause, the trial court should not withdraw the case from the jury by giving the affirmative charge. —Tober v. Pioneer Min. Co., 166 Ala. 517, 52 South. 86; Shipp et al. v. Shelton, infra, 69 South. 102; McCormack v. Lowe, 151 Ala. 313, 44 South.; M. J. & K. C. R. R. Co. v. Bromberg, 141 Ala. 258, 37 South. 395; Amerson v. Corona Coal. & Iron Co., infra, 69 South. 601.

Where there are two versions of a contract in evidence, charges requested by one party to the suit, based cm his version alone, are properly refused. — Bates v. Harte, 124 Ala. 427, 26 South. 898, 82 Am. St. Rep. 186. The general , rule is that the affirmative charge should never be given when there is a conflict in the evidence as to any material fact in issue, or when the evidence is open to reasonable inference of a material fact unfavorable to the party requesting the charge, or when the finding depends upon uncertain reasonable inference that may be drawn by the jury. — Baker v. Patterson, 171 Ala. 88, 55 South. 135; John v. Birmingham Co., 172 Ala. 603, 55 South. 801; Carter v. Fischer, 127 Ala. 52, 28 South. 376; Bomar v. Rosser, 123 Ala. 641, 26 South. 510; Bufford v. Raney, 122 Ala. 565, 26 South. 120; L. & N. R. R. Co. v. Lancaster, 121 Ala. 471, 25 South. 733; Cole v. Propst Bros., 119 Ala. 99, 24 South. 884; Abbott v. City of Mobile, 119 Ala. 595, 24 South. 565; Anderson v. Railroad Co., 109 Ala. 128, 19 South. 519.

A careful consideration of the conflicting tendencies of the evidence convinces us that the questions involved under the issue of fact presented should have been submitted to the jury under proper instructions.

(2) Nor did the testimony of the defendant and of his former bookkeeper, as to the private instructions of defendant to its agent touching the telegram to be sent plaintiff, authorize the giving of the general charge.

In Ray v. Fidelity-Phoenix Fire Ins. Co., 187 Ala. 91, 95, 65 South. 536-538, the opinion, discussing the principle just here being treated, proceeds as follows: “It may be assumed that this agent’s express authority was limited to the mere making of an investigation and a report of the result. But plaintiff had no notice of that limitation, and this agent’s authority as to third persons was governed by the nature of the business intrusted to him. His acts, within the usual scope of the business intrusted to such agents, provided plaintiff acted in good faith and was not guilty of negligence, bound his principal despite his private instructions, for the authority of an agent, as to those with whom he deals, is what it rehsonably appears to be.”

On receipt of the telegram from the defendant, if the plaintiff acted thereon in good faith, and was not guilty of negligence, then he could not be prejudiced by the private instructions of the principal to the agent, in the absence of knowledge that the agent was exceeding his instructions. — Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 South. 46. The telegram was a reply to a letter from plaintiff to defendant, and was signed by the defendant. The defendant corporation could act in such matters only through its agent. The telegram was sent to the plaintiff in the due course of business, and it related to the delivery of goods to be made by plaintiff to defendant. There was nothing in the transaction from which either plaintiff’s knowledge of the contrary instructions, or its negligence, could be inferred. In view of the circumstances of the transaction, the plaintiff had the right to presume that the telegram was a correct reply from the defendant corporation.

(3) The defendant’s motion to strike from the complaint the special damages claimed, incident to conducting a resale at auction of the goods, was properly granted. — L. & N. R. R. Co. v. Fletcher, 194 Ala. 257, 69 South. 634; Williams v. Finch, 155 Ala. 399, 46 South. 645; Southern Railway Co. v. Webb, 143 Ala. 304, 39 South. 262, 111 Am. St. Rep. 45, 5 Ann. Cas. 97.

(4) So of the refusal of the court to permit witness for plaintiff to testify of the general custom prevailing at the time in New York. The evidence does not show that defendant contracted for the purchase with reference to such custom, or that the same was a part of the contract of purchase, if such was consummated.

The measure of damages in such cases is the difference between the agreed price and the market price at the time and place of delivery, with interest. — 2 Sedg. Dam. (8th Ed.) § 94; 2 Benj. on Sales (4th Ed.) 973; 2 Addison on Con. § 589; 2 Greenl. Ev. § 261; Young v. Cureton, 87 Ala. 727, 6 South. 352; Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52; Harralson v. Stein, 50 Ala. 347; Penn. v. Smith et al., 104 Ala. 445, 18 South. 38; Austin et al. v. Beall, 167 Ala. 426, 52 South. 657, Ann. Cas. 1912A, 510; Craig & Co. v. Pierson Land Co., 179 Ala. 535, 60 South. 838; Gooden v. Moses Bros., 99 Ala. 233, 13 South. 765; Gwin et al. v. Hopkinsville Milling Co., 190 Ala. 346, 67 South. 382; Hopkinsville Milling Co. v. Gwin et al., 179 Ala. 478, 60 South. 270; Scruggs v. Riddle, 171 Ala. 350, 54 South. 641; Davis v. Adams, 18 Ala. 264; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; Barrow v. Arnand, 8 Q. B. 604-609.

In Gwin et al. v. Hopkinsville Milling Co., supra, this court held that, where a buyer repudiates the contract and refuses to receive the goods, a resale is not necessary to fix the buyer’s liability, but a resale in the market may be made, to ascertain the damages.

(5) If a vendor is to manufacture goods, and there is a repudiation of the contract while the goods are being manufactured, the vendor is not bound to complete the manufacture and may measure his damages by the difference between the contract price and the cost of production, or of performance. — Hopkinsville Milling Co. v. Gwin et al., 179 Ala. 472, 479, 60 South. 270; Hinckley v. Pittsburg Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967.

(6) Counts which require the same judgment may be joined. That there cannot be two judgments in one action is the reason for the rule of misjoinder of actions or counts in one complaint. Joinder in the same complaint, of separate counts, counts charging the breach of an executory contract, and the common counts, is not a misjoinder. — Code, §§ 5328, 5329; Skaines v. Barnes, 168 Ala. 426, 53 South. 268; Zavello v. Reeves & Co., 171 Ala. 401, 54 South. 654; Woodall & Son v. People’s Nat. Bank, 153 Ala. 576, 45 South. 194; Southern Ry. Co. v. McEntire, 169 Ala. 42, 53 South. 158; Shows v. Steiner et al., 175 Ala. 363, 57 South. 700; Sou. Bit. Co. v. Hughston, 177 Ala. 559, 58 South. 450; Western Ry. Co. v. Hurt et al., 160 Ala. 599, 49 South. 371; Cent. of Ga. Ry. Co. v. Malone, 165 Ala. 432, 51 South. 730; Zavelo v. Leichtman et al., 171 Ala. 65, 54 South. 537.

(7-9) Count 5 was not subject to any of the grounds of demurrer directed thereto.

For the error of the court in giving the affirmative charge at defendant’s request, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.