Ex Parte Southern Cotton Oil Co. , 207 Ala. 704 ( 1922 )

In Ex parte Worthington (In re Worthington v. Cleveland Lbr. Co., 17 Ala. App. 613, 88 So. 156) that petition for certiorari was assigned to me for consideration, and I entertained the view and wrote to the end that the writ be granted, which, however, was denied. 205 Ala. 385, 88 So. 159. My understanding of the effect of the decision and of the finding of fact by the Court of Appeals in that case, and so stated heretofore, was (1) that there was a dispute in the demand when —

"Worthington made a claim of damage for delay, or for nondelivery of materials (pursuant to contract) and attached his check thereto for the balance; (2) that thereafter the plaintiff cashed the check with full knowledge of the conditions attached to the tender of the check for the balance claimed by Worthington to be due on that demand; and (3) after placing the check beyond its control, took up the sufficiency of Worthington's claims for damages for delay or for nondelivery of materials purchased."

The contract between Worthington and Cleveland Lumber Company was found by the Court of Appeals to have been for the delivery to said Worthington of specific materials to be used by him through his constructing agent at a designated time and place. The circumstances of the use of the materials or necessity for prompt delivery were declared to have been understood by the contracting parties, stipulating that failing —

"to deliver certain timbers, piles, and lumber to the defendant within a certain time, * * * the defendant reserved the right in the contract to purchase the timbers in open market."

Plaintiff's failure, if it did so fail, to deliver all of the materials contracted for in due time was to such extent a breach of the contract of purchase and terms of delivery. The condition attached to the tender (check for the balance due by petitioner Worthington) was as to the payment of the balance claimed as due on the whole contract. The matter was in dispute and relating to the balance due on the contract, and was within the decision of Brown v. Lowndes County, 201 Ala. 437,78 So. 815; Brackin v. Owens Horse Mule Co., 195 Ala. 579,71 So. 97; Hand Lbr. Co. v. Hall, 147 Ala. 561, 41 So. 78; and not within Dreyfus v. Corn Products Co., 204 Ala. 593,86 So. 386, where the matter sought to be set up as a counterclaim pertained to, and grew out of, a separate and independent contract. The original invoice and "voucher" — corrected invoice and check — for the balance due by Worthington and acceptance by indorsements thereon are set out in 17 Ala. App. 614, 88 So. 156.

Having acceded to the judgment of my associates in denial of the writ in Worthington v. Cleveland Lbr. Co., 205 Ala. 385,88 So. 159, and believing that the instant opinion is a departure from the result announced in the Worthington Case I am in accord with Mr. Justice SOMERVILLE'S opinion.