P. B. Yates MacH. Co. v. Taylor , 215 Ala. 311 ( 1926 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an action by W. D. Taylor and Farrett Taylor, doing business as partners under the name of Taylor Bros., against P. B. Yates Machine Company, a corporation, for damages for the breach of a contract, claiming general and special damages. There was a verdict for the plaintiff, and from a judgment thereon by the court this appeal is prosecuted by the defendant.

It appears this action was first brought by plaintiff against defendant on this contract for damages for breach of a warranty, and it came to this court. See Taylor v. Yates Machine Co., 208 Ala. 528, 94 So. 588.

There is one count in this complaint. It is alleged that by the contract defendant agreed to sell and deliver to the plaintiff "one secondhand planer and matcher, type No. 91," for $4,200, on terms agreed upon, and "that said planer and matcher were in first-class condition and would do work equal to new, and there were no broken or missing parts"; and defendant breached said contract in that the planer and matcher delivered to plaintiff were not "in first-class condition would not do work equal to new, and there were broken or missing parts." It then describes the broken or missing parts. The plaintiff refused to accept it, so notified the defendant, and, at the request of the defendant, plaintiff shipped the same to Birmingham, Ala.

The plaintiff in the count by averments claimed general and special damages. Demurrers of the defendant were overruled by the court to this count. In this ruling of the court there was no error. It states a cause of action. 13 C. J. p. 714, § 8273; Taylor v. Yates Machine Co., 208 Ala. 528, 94 So. 588, and authorities there cited. It alleges the contract; avers its breach by defendant and the damages sustained. It is not subject to the demurrers as to the special or general damages claimed. If the count contained improper allegations, with respect to damages for which no recovery could be had, the court would not be put in error for overruling the demurrer to the entire count, pointing them out, nor for refusing to strike them from the count, because it was open to the defendant to object to the evidence introduced to support the averments, and they could, if improperly claimed, be eliminated by requesting proper instructions of the court to the jury. Vandiver v. Waller, 143 Ala. 411, 39 So. 136; Plylar v. Jones, 207 Ala. 372, headnote 3, 92 So. 445; National Surety Co. v. O'Connell,202 Ala. 684, 81 So. 660. This machine was to be used in dressing lumber.

Plea 3 was subject to demurrers, and the court did not err in sustaining demurrers to it. This is a suit for damages for breach of the contract — failure to furnish property of a certain description. The property under the complaint was returned because it failed to come up to the requirements of the contract, and this plea is no answer to those averments in the complaint, See Taylor v. Yates Machine Co., supra. This is not a suit for breach of warranty in the contract, but for failure to perform this executory contract as agreed.

The court sustained demurrers to pleas 4, 5, 6, and 9. We cannot find where the ruling on demurrers to plea 9 was mentioned in argument of brief of the defendant, so this assigned error will be considered waived by the defendant. Park v. Whitfield, 210 Ala. 18, headnote 14, 97 So. 68. These pleas 4, 5, and 6 set up, or attempt to set up, a rescission by the parties of the contract, and a return of the property by the plaintiff to the defendant; but it fails to aver a release by plaintiff of the damages for its breach occurring prior to the rescission. They are each insufficient, as they aver no fact to prevent a recovery by plaintiff for damages for the breach of the contract alleged in the complaint. It must be remembered this suit is not for damages for breach of the warranty in the contract. See Taylor v. Yates Machine Co., supra, and authorities there cited. It results the court did not err in sustaining demurrers to pleas 4, 5, and 6.

The same rule of law attempted to be or which was stated in defendant's refused written charge No. 13 was substantially and fairly given to the jury by the court in its general charge and in given charge No. 14, which was requested by defendant. So the court did not err in refusing charge No. 13. Section 9509 of the Code of 1923.

The court refused written charge No. 25, requested by the defendant, and in this there was no error, because it is argumentative, and under the written contract the plaintiff was given the right to make a trial of the machine for 30 days, and plaintiff had, under the contract, at any time within 30 days after the machine was shipped, to reject and return it. Taylor v. Yates Machine Co., supra. The principle of law stated, or attempted to be stated, in defendant's refused charge No. 19, was fairly and substantially covered by written charges No. 17-A and 18-A, given by the court at the request of the defendant. So for this and probably other reasons, there was no error in refusing charge 19. Section 9509 of the Code of 1923.

The court refused to give written charge No. 29, requested by the defendant, and in this there was no error. It is misleading, argumentative, and inapplicable to the evidence. There was evidence that defendant's agent asked plaintiff what they would keep the machine for — what they would ask to take off of it, and he was told they would keep it at a reduction of $1,000 in the price; that "it would have cost about $1,000 to have remedied the defects complained of." It clearly appears from the testimony that the $1,000 reduction in price was intended to cover the defects in the machine.

There are many other written charges requested by the defendant that were refused, which are assigned as error. We have considered only those argued in the brief of the appellant. The others, not argued, were waived. Morgan v. Virginia-Carolina Chemical Co., 213 Ala. 551, headnote 5,106 So. 136.

The defendant filed motion for a new trial. It was overruled by the court. The appellant insists the court erred in this ruling, because the verdict of the jury is excessive, which is a ground stated in this motion. The plaintiff claimed and proved that it had contracts, known to the defendant, when their contract was made, to plane, ship and sell 500,000 feet of lumber, and on account of the breach of this contract they had to ship this lumber undressed to their vendees, and the difference in freight on dressed and undressed lumber, paid by them, was $2.50 per thousand.

The court, at the request of the defendant, gave written charge No. 40, which reads as follows:

"If the jury believe the evidence they cannot award the plaintiff as damages the difference in freight between the rates charged for dressed and rough or undressed timber."

This eliminates $2.50 per thousand damages for the difference in freight on about 500,000 feet of dressed and undressed lumber, which amounted to about $1,250. The correctness of this charge is not presented for review. It is not assigned as error by the plaintiff. See section 6091 of the Code of 1923. With this claim for damages stricken by the court from the consideration of the jury, the total damages, general and special, shown by the testimony, amounted in the aggregate to $1,122.54. The verdict of the jury was for $1,894.06. It is clearly excessive, under the charge of the court and the testimony, to the amount of $1,894.06 minus $1,122.54 — equals $771.52.

The court should have granted the motion for the new trial, unless, the plaintiff consented for the amount of the judgment to be reduced from $1,894.06 to $1,122.54. The judgment will be reversed and the cause remanded, unless the plaintiff consents, in writing filed in this court, within 15 days from this date, for the amount of the judgment to be reduced to $1,122.54. The plaintiffs, appellees, are taxed with the cost of this court.

Reversed, and remanded conditionally.

SAYRE, GARDNER, and BOULDIN, JJ., concur.