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—and the reason of the ordinary rule as be- not give space. It was impossible to procure tween buyer and seller in the case of con- space, although the plaintiff was constantly on tracts to sell "f. o. b. cars" is thus stated:

the market for space and made every effort

to procure space to move the staves involved “Both [meaning cars and the subject of sale) in this suit, as well as a large quantity of other are alike in the open market, as much at the staves it had sold to its French customers uncommand of one as another, and the obtaining der the same contract by which it had sold the of each is equally essential to the accomplish- staves involved in this suit. The plaintiff could ment of the result."

get no space for the shipment of these staves,

and this condition existed from October, 1917, But the following language of the court is through 1918 and a part of 1919." to be observed and is peculiarly apt to the circumstances of this case to be presently

However, on August 12, 1918, plaintiff instated:

formed defendant by wire that it had pros“This general rule is subject to the qualifica- pects of shipping a small cargo from Mobile, tion that, if any step toward such result is and wanted to know whether defendant was necessarily dependent upon the doing of any prepared to deliver the rest of the staves act or supplying of any facilities wholly under contracted for; but defendant made no anthe control of the other party, latter impliedly undertakes that such act shall be done

And thus the matter rested until or such facilities supplied, for otherwise he June 3, 1919, when plaintiff wrote defendwould occupy the absurd position of insisting ant, commenting on the latter's failure to that the contract absolutely bound one party answer its last letter, and said: to do that which the other could at will render impossible"-citing cases English and Ameri- "We are not able and have never been able

since the purchase from you of these staves to ship them and we let the matter drop until we

should have positive freight engagements by No time was fixed for delivery; but the which to lift the staves. We have now secured correspondence between the parties by wire this opportunity and wish to know what steps and post, what they said and did in the par- you can take towards filling your contract." tial performance of the contract (this shown also by correspondence), and the conditions

This also went unanswered. And on Sepobtaining at the time and affecting all trans-tember 5, 1919, plaintiff again wrote, deportation (these brought about by our prepa- manding somewhat more peremptorily that rations for the war then waging in Europe, defendant fill its contract by the delivery of the same being matters of common knowl: the remaining 38,000 staves. This was foledge)—these evidential facts point without

lowed October 27, 1920, by another of like contradiction or adverse inference to the

tenor, which defendant answered November conclusion that the mutual understanding and intention of the parties was that deliv: 2, 1920, denying, in effect, any obligation to

make further deliveries. eries were to be made on cars at Mobile as

[3] The trial court instructed the jury plaintiff should be able from time to time to that this letter of November 2, 1920, constiprocure from officers of government permits for the use of cars, for so only could cars be tuted a breach of the contract, and directed had, and should furnish shipping instruc- difference, if any, between the contract price

that plaintiff's damages be assessed at the tions. Thus the case is brought within the of the staves and their market price on that reason of the well-established rule of law: date; but, there being evidence that there

“That in a contract for the sale and delivery was no market for staves during November, of goods, free on board' vessel, the seller is nor any after July, 1920, the jury awarded under no obligation to act, until the buyer names the ship to which the delivery is to be nominal damages. Assuming the jury's acmade; for until he knows that the seller could ceptance of the evidence just stated, their not put the goods on board.” Vogt v. Schiene- verdict filled the measure of justice. beck, 2 Ann. Cas. note on page 818.

"If the goods have no value whatever, the

buyer can never be entitled to more than nomiIt is also clear that deliveries were to de- nal damages; and as the burden is on the buypend upon plaintiff's ability to get space on er to prove his damages, if he fails to prove vessels to France, for which market plain the market price, or some other appropriate tiff was buying staves—at that time a mat- measure of damages, his recovery is only nomi. ter of no little difficulty and uncertainty, nal.” 3 Williston on Contracts, $ 1384. and that payments were to be made as staves were shipped. October 18 and 20, [4] The complaint now is that the court 1917, two cars were delivered and shipped erroneously fixed the date of breach. It is by rail to plaintiff's consignment at New insisted that the contract between the parYork. The testimony of plaintiff's witness ties was breached when plaintiff, June 3, Thomas is that after the shipments stated 1919, stated, without response from defendabove

ant, its wish to know what defendant could "owing to the difficulty in procuring railroad do towards filling his contract, or, at worst, cars for shipments, the steamship people would that there was a breach when, September 5,

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(100 So.)
1919, plaintiff demanded performance with
like result.

WAY v. WATERS-TONGE LUMBER CO.
There was no sale of specific staves. De-

(2 Div. 837.) fendant's engagement was merely to deliver a certain number of staves of a certain qual- | (Supreme Court of Alabama. April 24, 1924.) ity as defendant should make arrangements 1. Evidence 20(2)-Court takes judicial nofor their shipment. During the interval be tice that during federal control movement of tween October 20, 1917, and August 12, 1918,

cars was subject to government authority. plaintiff made no suggestion that the con

Court takes judicial notice that during fedtract was still pending, nor any demand for eral control of railroads movement of cars was performance, until June 3, 1919. At that

subject to government authority. time the market price of claret staves was 2. Sales mw 181 (9)-Refusal to permit seller $100 to $450 the thousand. Whether by rea

to prove efforts to procure cars held error. son of this failure to assert the continued Where contract for sale of lumber was life of the contract, notwithstanding the made with reference to seller's ability to prostate of abeyance of suspended animation cure cars, and its inability was a contested is-into which it had fallen, there was such sue, it was error in buyer's action for seller's

failure to ship to refuse to permit seller to laches, such unreasonable delay on the part state what efforts he made to procure cars. of plaintiff to demand performance, as constituted a waiver or abandonment of its 3. Sales Ow 181(9)-Exclusion of buyer's let.

ter demanding shipment after numerous ex. right under the contract, was probably a

tensions of time held error. question for the jury; but, assuming, in accordance with plaintiff's contention, as the tified that buyer made several extensions of

Where president of buyer corporation testrial court did assume, that on June 3, 1919, time for shipment, it was error to sustain there was a subsisting obligation on the part buyer's objection to admission of its last letter of defendant, we are of opinion that the demanding shipment and suggesting change in court correctly instructed the jury that the order if it would facilitate shipment. breach occurred when, November 2, 1920, de- 4. Sales Ow418(2)—Measure of buyer's damfendant denied all such obligation; this for

ages stated. the reason that, in the absence of repudia General rule for measure of damages where tion by defendant, plaintiff could only put seller fails to deliver is difference between defendant in default by making all neces- agreed price and market price at time and place sary arrangements and giving necessary in- of delivery. structions for transportation. In the ab- 5. Sales Cw418(2)—Buyer's damages fixed at sence of such arrangements and instructions expiration of reasonable time after buyer's defendant would have been unable to make last demand for delivery. delivery according to the true intent and Where buyer made several extensions of meaning of the contract-could not have time for delivery, seller had reasonable time to

ixed time of
shipped the staves, even if able to procure deliver after last demand, which
cars, without assuming a risk his contract breach and time as of which buyer's damage

must be measured.
did not require him to assume. Hughes v.
Knott, 138 N. C. 105, 50 S. E. 586, 3 Ann.
Cas
. 903; Sterne v. Bay State Milling Co.,

Appeal from Circuit Court, Marengo Coun.
178 N. C. 479, 101 S. E. 21. If it had been ty; John McKinley, Judge.
necessary under the contract that the time Action for breach of a contract of sale
of delivery only be fixed by plaintiff's de- by the Waters-Tonge Lumber Company
mand, any demand which would have fairly against Thad Way, doing business as Albar.
put defendant on notice that performance dell Mills. Judgment for plaintiff, and de
was expected would have been sufficient to fendant appeals. Transferred from Court of
put defendant in default after the lapse of a Appeals under Acts 1911, p. 449, § 6. Re-
reasonable time thereafter without delivery, versed and remanded.
and so to fasten upon him the consequences Wm. Cuninghame, of Linden, for appellant.
of a breach. But the fixing of the time of I. I. Canterbury, of Linden, and Benj. F.
delivery was not the only thing plaintiff had Elmore, of Demopolis, for appellee.
to do in order to put defendant under the
duty to deliver; it was necessary that plain GARDNER, J. (1) Action in assumpsit by
tiff get a permit for cars and give shipping appellee against appellant to recover dam-
instructions. This plaintiff did not do. We ages for failure of the defendant to ship
are therefore at the conclusion that the four separate cars of lumber, contracted to
court committed no error, and that the judg. be sold by defendant to the plaintiff. The
ment should be affirmed.

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orders for the lumber were given in the Affirmed.

months of November and December, 1917,

The price was fixed as f. o. b. the cars at ANDERSON, C. J., and GARDNER and Thomaston, Alabama, the shipments to be MILLER, JJ., concur.

made wat once" as to some of these orders For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

er, ed

and within 30 days as to others. This was, Am. Rep. 28; Andrews v. Tucker, 127 Ala. during the period of federal control of the 602, 29 South. 34; 9 Cyc. 608. railroads, and the movement of cars was sub- [4] The general rule for the measure of ject to government authority, as shown by damages in cases of this character is the difthe proof, and of which the court takes ju- ference between the agreed price and the dicial notice. Moon v. Hines, 205 Ala. 355, market price at the time and place of de87 South. 603, 13 A. L. R. 1020; L. & N. R. livery. 24 R. C. L. 68, 69; Gwin v. HopkinsR. Co. v. Shikle, 206 Ala. 494, 90 South. 900. ville Milling Co., 190 Ala. 346, 67 South.

[2] It is very clear from the proof in con- 382. It has been also held that the purchaser nection with the conditions then prevailing may supply himself by repurchase in the that both parties contracted with reference market on account of the seller and where to the ability of the defendant to procure reasonable diligence and care is used in makthe cars upon which to load the lumber for ing the purchase he may ordinarily recover shipment. J. H. Hamlen & Son v. Rosen- the difference between the agreed price and grant (Ala. Sup.) 100 South. 217; Farmers' the advance price wþich he is forced to pay. C. 0. Co. v. Ward & Son, 170 Ala. 491, 54 24 R. C. L. 71-74; Gwin v. Hopkinsville South. 513.

Milling Co., supra. [3] Defendant as a special defense insisted [5] Having in mind this rule for the measthat he was unable to procure the necessary ure of damages, the plaintiff offered proof cars, and this was a contested issue of fact tending to show there was no market for in the case. In view of the issue thus joined, this lumber at Thomaston, the place of dewe are of the opinion the court committed livery, and introduced in evidence, over error in not permitting the defendant when defendant's objection, invoices showing the a witness in his own behalf to state what purchase of this character of lumber at efforts he made to procure the cars for the points in the vicinity of Thomaston in the shipment of this lumber. The evidence months of November and December, 1918. shows without dispute that the lumber was This was the only effort on the plaintiff to not shipped as ordered, but that the time of establish the amount of damages suffered, shipment was waived by the plaintiff. Wa- that is, by showing the difference between ters was president of the plaintiff corpora- the agreed price and the price which he tion, and his testimony shows that the com- paid at the above-mentioned purchases. As pany continued to extend the time for the herein before stated, however, the undisputed delivery of these cars, and was willing to evidence discloses that the time for delivery take them as late as May 29, 1919, when, on of this lumber was extended until within a that date, he wrote a letter asking for the reasonable time after May 29, 1919, and shipment to go forward and suggesting a that therefore, when the plaintiff made these change in the order as to the character of purchases of lumber in November and Decemlumber if that would be of any aid in facil-ber, 1918, the contract here in question was itating the shipment. This witness further still treated as being in full force and effect, testified that his "company held the delivery and the plaintiff was not relying at that time open continually up to a reasonable time, upon a breach thereof. Under the undisafter May 29, 1919," and the letter of this puted proof, therefore, the breach of the condate specifically refers to these orders by tract as to delivery did not occur until aftnumber; and we are of the opinion the court er the expiration of a reasonable time after erred in sustaining plaintiff's objection to its May 29, 1919, and the plaintiff's damages introduction.

must be measured from this period. J. H. In Lowy v. Rosengrant, 196 Ala. 337, 71 Hamlen v. Rosengrant, supra. South, 439, it was held, when a breach of We are therefore of the opinion the court the contract occurs, an election must be made committed error in admitting over defendbetween treating it as dissolved and insist- ant's objection these invoices, for the reaing upon further performance, and the time sons above stated. of performance may be waived by the con- for the error indicated, let the judgment duct of the party for whose benefit the stipu- be reversed, and the cause remanded. lation is made, such as a recognition of the Reversed and remanded. contract as still in force after the time for performance has passed. See, also, to like ANDERSON, O. J., and SAYRE and MILeffect, Brigham v. Carlisle, 78 Ala. 243, 56 LER, JJ., concur.

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tator,

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(100 So.)

I hereby expressly exempt her from giving NAUGHER et al. v, HINSON. (6 Div. 932.) bond as such executrix.

"Item 2-I now owe no debts, but I direct (Supreme Court of Alabama. April 10, 1924. my executrix to pay as soon as practicable Rehearing Denied May 15, 1924.) after my death, any debts that I may owe at

the time of my death, including funeral exI, Wills 702—Bill held to make proper case penses. for construction of will.

"Item 3-I give, devise and bequeath to my Bill charging that widow as executrix and wife, C. E. Naugher, as trustee, all of the prop

erty, both real and personal and mixed, of trustee claims absolute power to make ad- which I die seized and possessed, upon the folvancements in unlimited amounts as she may lowing trust and conditions, to wit: see fit, etc., and challenging absolute owner

"My said trustee, shall have the full power ship of life estate and property, held to set and authority to manage and control the trust forth proper case for construction of will.

estate during her life, and without order of 2. Wills Cm 439—Not purpose of construction court, and in whatever way she may deem to substitute will of another for that of tes- best, and my said wife shall be entitled to re

ceive for her own use, from herself as trustee It is not purpose of construction to substi- all of the net income from my estate, during tute will of another for will of testator.

her life, and if such income is insufficient for

her comfortable support and maintenance, she 3. Wills 691-Powers to be defined not re- shall have the right and power to sell so much stricted.

of the corpus of my estate and use the same Where will devises beneficial interest, ac as is necessary for her comfortable support companied with trust for life, and confers large and maintenance during her life. discretionary powers, these powers are to be "My said wife shall also, as trustee, have defined, not restricted, by court in suit to the right and power, at private sale, and withconstrue the will.

out order of court, to sell and convey, or oth4. Executors and administrators am 63-Will erwise dispose of, any property belonging to cannot dispense with inventory.

my estate for reinvestment, and in like manner

sell for reinvestment any property which she Filing of inventory by an executor is a

may acquire as trustee. duty which cannot be negatived by the will.

“None of my children shall be entitled to 5. Executors and administrators 458_Statenforce a division, or demand any portion of utory duty to make settlement mandatory. my estate until the death of my said wife, and Duty of executor to make settlement, un

then it is my will that my estate shall be di. der Acts 1919, p. 566, is mandatory.

vided share and share alike between my chil.

dren, and if at the time of division any one of 6. Executors and administrators On 26(1) my children be dead, leaving surviving a child Requirement of bond of executor relieved or children, such child or children shall take therefrom by will.

the share which the parent would have taken Requirement of bond of executor, relieved if living, provided, that the advancement which therefrom by will, is only on a judicial finding I have heretofore made to my daughter, Minthat estate is likely to be wasted to prejudice nie Smith of eight hundred and twenty-five of some person interested therein, under Code dollars, and the advancement which I have 1907, $ 2541.

heretofore made to my daughter, Dora Hinson,

of eight hundred and twenty-five dollars, shall Appeal from Circuit Court, Fayette Coun- against them on the division of my estate.

be taken into consideration and be charged ty; J. J. Curtis, Judge.

"Item 4-It is further my will and I authorBill in equity by Dora Hinson against o. Size and empower my wife, as trustee, to make E. Naugher and others, seeking removal of advancements to such of my other children, the administration of the estate of William other than Minnie Smith and Dora Hinson, as T. Naugher, deceased, from the probate to she sees fit, after such children arrive at the the equity court, for construction of the will age of twenty-one years or are married; all

such advancements made to be chargeable of said Naugher, etc. From a decree overrul- against the child, to whom the advancement ing demurrer to the bill, respondents appeal. is made, on final settlement and distribution of

my estate. See, also, 207 Ala. 592, 93 South. 560. "Item 5-I expect my wife to give the necesThe will of William T. Naugher is as fol- sary support and maintenance and education

to my minor children as she deems necessary,

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Affirmed.

I

out of the income which she receives from my "State of Alabama, Fayette County.

estate, but this is left entirely in her discre. “I, William T. Naugher, a resident citizen tion as to the amount that she expends for of Fayette county, Alabama, being of sound these purposes, and the advancements heremind do make and declare this to be my last in before authorized as to the amount, and will and testament, hereby revoking any and whether or not they will be made, is left to all wills heretofore made by me.

her discretion as trustee. "Item 1-I hereby appoint my wife, C. E.

"Item 6–I direct my wife, as executrix, shall Naugher, executrix of this my last will and not be required to file any inventory of my estestament, and expressly direct that she shall tate in any court, and I further direct that my not be required to give bond as such executrix. wife, as trustee shall not be required to give

Emo For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

lows:

any bond as trustee, and that any loss that I [1] The main equity of the bill is the conmay be sustained in the administration of said struction of the will-is to define the interestate by her, either as executrix or trustee, ests of the parties and the scope of the pop shall not be chargeable against her.

ers conferred. To illustrate, the bill charges “In witness whereof, I hereunto set my sig- that Mrs. Naugher, as executrix and trustee, nature and seal to this my last will and tes claims the absolute power to make advance tament, and identify each page of my will, there being this page and two preceding pages,

ments in unlimited amounts as she may see which constitute all the pages of this my last fit. The complainant claims that under the will and testament by writing my name on the will all the children are to share alike in the margin of each page, this the 11th day of July, unconsumed portion of the estate after the 1908.

mother's death, less the advancements made "[Signed] William T. Naugher. [L. S.]

by the father, and that the discretion to "The foregoing instrument was signed by make advancements to the minor children William T. Naugher and declared to be his last as they become of age or get married is will and testament in our presence and in the limited by this devise to all alike. Again, presence of each of us, and we in his presence, and in the presence of each other and at his the bill challenges the mother's absolute request, have hereunto set our signatures as ownership of a life estate in the property, attesting witnesses on the day of the date of her right to the income therefrom except in said will.

F. M. Robertson. trust for the support of herself and minor

"S. J. Cannon. children. These, and other features of the James J. Mayfield, of Montgomery, and s. bill, make it a proper case for construction

of the will. Ashurst v. Ashurst, 175 Ala. T. Wright, of Fayette, for appellants.

W. L. Harris and Wm. W. Monroe, both of 667, 57 South. 442. Fayette, for appellee.

[2-4] It is not the purpose of construction to substitute the will of another for the will

of the testator. This will, besides devising BOULDIN J. The purpose of the bill is a beneficial interest to Mrs. Naugher, accomset forth in the decision on former appeal. panied with a trust for life, confers large Hinson v. Naugher, 207 Ala. 592, 93 South. discretionary powers. It bespeaks great per560. We there sustained the general equity sonal confidence. These powers are to be of the bill, but upheld the decree sustaining defined, not restricted. No unnecessary burthe demurrer thereto upon the special groundden in the matter of accounting as trustee of misjoinder of parties. The will sought to for that which is personally hers should be be construed did not then appear in the rec-added, and no needless consumption in costs. ord, without which it did not affirmatively There are certain legal duties required of appear that the children of decedent, other executors which cannot be negatived by the than complainant, took such interest under will. Among these is the filing of an inven. the will as to make them proper parties. tory. Complainant thereafter amended section 4

[5, 6] Under our present statute the duty of the bill setting forth the interests of the to make settlement is mandatory. The adparties; the will being then an exhibit to the ministration of an estate is a court proceedbill.

ing. In due course it should end by a propThe trial court overruled the demurrer to er order made upon a showing as to the manthe bill as thus amended, and the present ner in which the duties imposed have been appeal is from that decree.

performed. Acts 1919, p. 566. The require The will being now before us, both parties ment of bond of an executor, who is relieved argue questions going to its proper construc- therefrom by the will, is only on a judicial tion. These questions are not now for our finding that the estate is likely to be wasted decision as we held on former appeal, except to the prejudice of some person interested for the purpose of passing upon the equity | therein. Code, 1907, § 2541. of the bill and the several grounds of de

These general comments .are made, not by. murrer presented.

way of construing the will, but as outlining It is insisted that the will of the husband somewhat the nature of the issue presented

by the bill. vests such title and beneficial interest in the

The decree of the court below is affirmed. wife, coupled with powers of control and

Affirmed. disposition, without liability to account, that her discretion is absolute and not to be con- ANDERSON, O. J., and SOMERVILLE trolled nor directed.

and THOMAS, JJ., concur.

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