Henderson v. Holmes Dawson , 204 Ala. 203 ( 1920 )

Appellees brought this action against appellants, alleging the breach of a contract by which appellants undertook to sell and deliver to appellees 500 tons of peanuts. Demurrer addressed to the complaint and each count thereof was overruled, and the assignment of error is that "The court erred in overruling the demurrer to the complaint." In the brief it is noted that counts 2, 4, 8, and 9 each averred that the peanuts were to be delivered "f. o. b. railroad cars at Enterprise, Ala., as fast as cars could be procured," and it is argued that these counts were defective, for that they contained no allegation that defendants had had time in which to procure cars or that cars could have been procured. Other counts did not contain the quoted allegation, so that the assignment of error and the argument in support thereof hardly point out with sufficient definition the ruling complained of. But, aside from that, counts 2, 8, and 9 were charged out, so that, as to them, the assignment of error could avail nothing, however made. Nor was the demurrer as to count 4 well taken, for the legal effect of the contract alleged was that deliveries were to be made as soon as transportation could be secured, and if cars could not be secured that was a matter of defense to be alleged and proved by the defendants. The demurrer was therefore properly overruled. Farmers' Co. v. Ward, 170 Ala. 491, 54 So. 513; Raisin Fertilizer Co. v. Barrow, 97 Ala. 694, 12 So. 388.

Even though by any strained construction the fourth count could have been held to allege that deliveries were to be made when drafts for purchase price with bills of lading attached were presented to plaintiffs, and thus a variance established between that count and the contract offered in evidence and containing the stipulation already quoted, still, manifestly, the objection to the contract on that ground could not have been sustained, for certainly there was no variance between it and other counts of the complaint. Further, we hold that defendants' construction of count 4, adopted in order to work out a variance, was strained and unnatural, and therefore not to be accepted by the court.

Plaintiffs' witness Smithers was permitted to testify that plaintiffs were to pay for the peanuts on drafts attached to bills of lading as fast as cars could be procured to Suffolk, Va.; that being plaintiffs' place of business. There was no error in overruling defendants' objection that thus plaintiffs were allowed by parol to vary the written contract in evidence. There was no inconsistency between this testimony and the written contract, which did not purport to state the time or method of payment, and for this reason the ruling of the court did not impinge upon the rule of law which forbids parol evidence to vary a written contract complete in itself, the validity of which is not questioned. Whatley v. Reese, 128 Ala. 500,29 So. 606, and cases there cited.

The trial court overruled defendants' general objection to plaintiffs' question to the witness Sawyer asking "what the market price f. o. b. cars Enterprise, Ala., of peanuts was during the month of March, 1918." The contract, entered into on January 10, 1918, called for Carolina runner peanuts, "grade to be of average general run." The answer stated the price of Carolina runner peanuts, but said nothing other or further as to grade. Time for performance had by correspondence between the parties been extended to and beyond the time inquired about, and it appeared the tendency and movement of prices during the time was upward. So there was no valid objection to the question or answer as irrelevant or hurtful on the ground that they showed a price at a time different from the breach shown in evidence. As for the rest, defendants' objection was too general to serve the purpose now shown in argument. No doubt, had defendants stated their objection on the ground that the question and answer were not predicated as of a "grade of average general run," the question would have been amended, if in fact the market at the time recognized grades of peanuts other than good or bad, or the objection would have been sustained. It was said in Wallis v. Rhea, 10 Ala. 451, that justice itself, the dignity of judicial proceedings, and the certainty of the law, all impel to the conclusion that, if the party making an objection will not particularize, the court is not bound to cast about for the grounds upon which, in the mind of counsel, it is rested. Sanders v. Knox, 57 Ala. 83. We speak not of a case in which the evidence called for is patently illegal or irrelevant, and apparently incapable of being rendered admissible in connection with other evidence. Bufford v. Little, 159 Ala. 300, 48 So. 697.

There was no error in receiving evidence of the market price of Carolina peanuts at Enterprise in April and May, 1918. As we have said, the time of delivery was by correspondence from time to time extended, and these extensions covered the latest of the times inquired about and the movement of the market was upward. One witness spoke of the price of North Carolina peanuts, and objection is taken to his testimony on that account. Whether the question called for the discrimination between Carolina and North Carolina peanuts, and whether there is a difference between Carolina and North Carolina peanuts, the record does not inform us nor do we know judicially. For aught we know, the witness spoke of the kind of peanuts mentioned in the contract. And so, too, for aught we know, a statement as to peanuts, without more, may very properly be held to intend the "average general run" of peanuts.

Defendants objected to the letter of March 12, 1918, on the ground that it was incompetent, immaterial, and irrelevant. This letter was not competent to prove that the carload of peanuts to which it referred was "damaged and mixed" or "bad stock." There was competent evidence that this carload was damaged and mixed, and plaintiffs had rejected it on its arrival at Suffolk, and it was their duty to notify defendants of the fact and the reasons for it, to the end that defendants might thereafter act advisedly with reference to further disposition of the peanuts; at least a very strong presumption that the peanuts measured up to the standard of the contract would have arisen out of plaintiffs' silence. Plaintiffs were entitled to exclude a conclusion of that character, and proof of this letter legitimately served that purpose. If defendants apprehended a misapprehension of its true and lawful purpose, its effect should have been limited by instructions.

Defendants' requested general charge as to count 4 was based upon an alleged variance our consideration of which has already been stated. The charge was properly refused.

There is no merit in the appeal and the judgment must be

Affirmed.

ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.