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were held by the committee at the same for future delivery as to the differential befigures. These figures represented the price tween grades above and below the basis at which spot cotton could be bought, but grade. Spot quotations are made under above what purchasers would pay. Spot | the general supervision of the United States cotton was not moving.

Department of Agriculture, and in the mainIt further appears that on the day of tenance of a "bona fide spot market" under the call some 230 bales of "hedged" cotton the provisions of the Cotton Futures Act. were sold in New Orleans. One lot of 100 U. S. Stat. at Large, vol. 39, part 1, P, 476 bales strict middling was sold for $31.15. et seq., 88 5, 6, 7, 8 (U. S. Comp. St. 88 6309e

Under a rule of the Exchange then in 6309i). This act evinces a policy that the force, sales of "hedged" cotton could not market value of spot cotton shall dominate be considered nor taken into account in fix the price of futures, rather then futures ing spot quotations. Two reasons are given dominate the price of spot cotton. for this rule:

The spot quotations of the New Orleans (1) Cotton on hand, which is hedged by Cotton Exchange, printed and circulated the sale of a future contract, may, on a daily through the public press become decline in the future market, be sold at a "prices current,” an informing agency to

price which the holder would not otherwise all those interested in current prices of this • accept, and still realize a profit on the staple product. "Prices current and com

whole transaction. The status of such cot- mercial lists, printed at any commercial ton is considered fixed as of the date it is mart, are presumptive evidence of the value hedged, and the sale on a later date is but of any article of merchandise specified therea liquidation of a previous transaction. in, at that place, at the date thereof." Code

(2) To prevent price manipulation and of Alabama 1907, § 3977; 6 Words and fraud, as, for example, selling spot cotton Phrases, First Series, “Price Current," p. at a low price to establish a spot quotation, 5548; 22 C. J. p. 188, § 152.** enabling the seller to realize a larger profit (4) The contract between these parties on his transactions in futures.

must be construed according to the intent exAll parties agree this was a law of the pressed therein on August 23, 1917, when Exchange. The defendant insists thạt, in it was made, and cannot be influenced by the absence of other spot sales, the price unusual conditions in the market on the of hedged cotton is the best evidence of day of the call, April 19, 1918. The New the market price at which cotton can be sold Orleans market was made the controlling on that day. On the other hand, it is not market by the contract of the parties. We seriously questioned that sales of "hedged" may assume one purpose was certainly therecotton may and do occur at a price below in—a standard market reported daily, and that for which unbedged spot cotton can be easily ascertained. It appears the market bought on that day.

price furnished by plaintiff to defendant, There is some evidence that the market upon which the call was made, was the price or value of spot cotton was figured at spot market published that day on the Exso many points on or off the price of future change in regular course. It further ap contracts for the hedge month, and that a pears the letter from defendant to plaintrade custom existed to that effect in the tiff claiming 31 cents as the basis of settleNew Orleans market.

ment was posted on April 21st, after reThe weight of the evidence, however, is to ceiving a telegram from New York giving the effect that by a well-known trade custom directions to that effect, or usage a sale of cotton, at a price to be fix [5] The cause was heard by the trial ed on a future date on the basis of the value judge, without a jury. Evidence was taken of spot cotton in New Orleans on that day, both orally and by deposition. The amount is to be settled for on the official spot quota of the judgment rendered indicates the court tions of that date. This evidence was prop-- accepted the price basis of neither party. erly admitted. Loval v. Wolf, 179 Ala. 505, It approximates more nearly the basis of 60 So. 298; Buyck & Cain v. Schwing, 100 value presented by plaintiff than by deAla. 355, 14 So. 48; Haas & Bro. v. Hud- fendant. Both parties appeal. mon Bros. & Co., 83 Ala. 174, 3 So. 302; We think under the evidence and prinGuesnard v. L. & N. R. R. Co., 76 Ala. 453 ; ciples of law applicable the legal rights of Barlow v. Lambert, 28 Ala. 704, 65 Am. these parties, as well as a settled conDec. 374; 17 C. J. p. 462, & 20; Id. p. 464, struction of such contracts, demand a find$ 26; Id. p. 503, $ 66, and notes.

ing of the basis of value in keeping with We adopt the above as the law of the the contention of one side or the other. case before us, for the following additional | There seems to be no substantial ground reasons. The spot quotations on the New for a third position in the matter. These Orleans Exchange have an official or quasi parties and the public at large should know official character. The United States Cot- the legal meaning of contracts of sale on ton Futures Act makes the values of spot call of this class, cotton the basis of settlement on contracts [6] Accordingly, we find that on a sale

(102 So.) and delivery of cotton, the price to be fixed | grantee acquires estate in land empowering at a future day on the basis of the value him to maintain ejectment, whether consideraof spot cotton, in the City of New Orleans tion is for entire subject conveyed by title, and on that day, is presumed to mean the mar

whether contract contains any words of grant

or demise. ket value ascertained, reported, and published as the official quotation on spot cot. 5. Licenses eww 44(2)-Contract for removal of ton on the New Orleans Cotton Exchange. gravel held to constitute a license coupled The burden of proof is on him who asserts

with an interest. that a different standard of value was in Where a contract between owner of gravel tended.

pit and city stated that owner sells to city gravel For error in the amount thereof, the judg: egress, city to pay for gravel in monthly in

as it may need, granted right of ingress and ment of the court below is reversed, and stallments, contained no words of demise or a judgment will be here rendered in favor grant, and was not witnessed held that it conof appellant, Maxwell Planting Company, stituted license coupled with an interest, that for the amount now ascertained to be due, is, right to remove gravel during life of conriz, the sum of $2,882.19, with interest there tract, and not a lease. on from April 19, 1918, to this date, being 6. Sales Ow384(2)-Difference between conthe aggregate sum of $4,383.48, together tract price and market price at time of dewith the costs of suit in this court and the fault measure of damages for buyer's refusal court below. On cross-appeal the cause is to complete contract. affirmed.

Where contract for sale of gravel stipulated Reversed and rendered, on direct appeal; minimum amount to be purchased and valuation affirmed on cross-appeal.

thereof, on buyer's refusal to complete contract.

seller's measure of damages was the difference ANDERSON, C. J., and SOMERVILLE between contract price and market price at and THOMAS, JJ., concur.

place and time of default, and not contract price, on theory that valuation constituted liquidated damages; fact that buyer had right of ingress and egress not affecting nature of contract.


Appeal from Circuit Court, Montgomery

County; Leon McCord, Judge. (Supreme Court of Alabama. Oct. 16, 1924.

Action for breach of contract by Dan S. Rehearing Denied Nov. 27, 1924.)

Holt against the city of Montgomery. From 1. Licenses 58(1)-Revocable unless coupled a judgment granting defendant's motion for with an interest.

a new trial, plaintiff appeals. Affirmed. A mere license is generally revocable at

The contract, the basis of the suit, is as pleasure unless coupled with an interest.

follows: 2. Licenses m 44(2)-Distinguished from

"State of Alabama, Montgomery County. "lease." A lease is a contract for possession and

"This agreement, made and entered into this profit of land by lessee and recompense of rent the 8th day of November, 1919, by and between to lessor, and is grant of an estate in land, the city of Montgomery, Ala., hereinafter called while a license is authority to do some act on

the city, Ray Rushton, as receiver of Montland of another for benefit of licensee without gomery Light & Traction Company, his succespassing estate in land.

sors and assigns, hereinafter called the Com(Ed. Note.- For other definitions, see Words pany, and Dan S. Holt, witnesseth: and Phrases, First and Second Series, Lease, gravel as it may during the life of this con

“(1) Said Holt hereby sells to the city such License.)

tract desire to purchase, and shall remove from 3. Licenses 44(2)-Exclusive possession property owned by him at Pickett Springs near

against all world test in determining whether the city of Montgomery, Ala., and known as lease or license.

Holt's gravel pit, at and for the price of ten In determining whether contract is a lease cents (10c) per cubic yard for such gravel as or license, principal test is whether or not it is actually removed from said pit, settlement gives exclusive possession of premises against therefor to be had monthly, in accordance with all the world including owner, thus constituting the records of the city engineer of said city; and a lease, or whether it merely confers a privilege for the purpose of removing said gravel hereby to occupy under owner, thereby indicating a

grants unto the city all rights of ingress and license.

egress over any lands owned by him with right

of way for roads and tracks, poles, wires, and 4. Licenses em 44(2)-Mines and Minerals switches.

55(3)-Tests in determining whether con “(2) The city agrees to remove and pay for a tract for removal of products or mineral minimum of thirty thousand (30,000) cubic rights is lease or license, stated.

yards of said gravel within two years from the In determining whether contract granting date of this agreement, but reserves the right right to enter grantor's land and remove prod to remove and pay for as much more than this acts or minerals therefrom, is a lease or li- amount as its needs may require; the city agrees cense, consideration will be given to whether I at its own expense promptly to load such cars

wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 102 80.4


as may be placed upon siding at said pit at its trial was filed by the defendant, and upon request, and agrees to unload promptly at its consideration of this motion the trial court own expense upon delivery at such points in the granted the same and set aside the judg. city of Montgomery as it may designate all grav. ment theretofore entered, and from the judg. el loaded by it upon cars of the company, and ment of the court granting the motion for a agrees to pay the company for hauling such gravel as the city may load and designate de- new trial the plaintiff has prosecuted this livery for the sum of fifty-two cents (52¢) per

appeal. cubic yard payable at the end of each calendar Counsel for appellant treat the case as if month, based upon the records of the city en-count 4 alone appeared in the complaint, and gineer of the city.

consider that the result of this appeal turns “(3) The city further agrees and binds itself to upon a proper construction of the contract furnish to the company, loaded upon cars at the made an exhibit to this count. This conpit, such gravel as it may need to ballast its tract appears in full in the report of the tracks at actual fuel and labor cost to the city, of excavating and loading said gravel plus royalty to said Holt and plus a profit to the city construed is in fact a lease of his gravel pit,

Plaintiff insists that this contract properly of 12 per cent. of such cost.

“(4) The company agrees, at its own expense, and that the minimum amount of gravel to lay all necessary tracks into said pit, and the which the defendant agreed to purchase concity agrees at its own expense to make such stitutes rent, while the defendant urges that changes and extensions thereafter as it may de- it was merely a sale by the plaintiff to the sire. The company agrees promptly to trans- defendant of a certain quantity of gravel at port such gravel as may be loaded by the city, a given price, with license to the defendant and agrees to furnish at its own expense for the to go upon the land for the purpose of repurpose of transporting said gravel not less than four cars of a minimum capacity of nine cubic

moving the gravel. yards each, and will, whenever requested by the

[1, 2] Licenses are often granted upon such city, cause at least two of said cars to be kept terms and conditions and upon consideraat said pit for purpose of loading. The com- tions which ally them so closely to leases, pany agrees promptly to transport and de- that it is frequently difficult to distinguish liver at any point upon any of its lines within between them. A mere license, as that term the city of Montgomery, as may be designated is generally used, is revocable at pleasure (17 by the city, such gravel as may be loaded by R. C. L. 576; Riddle v. Brown, 20 Ala. 412, the city, and agrees, free of charge, to trans- 56 Am. Dec. 202), but when coupled with an port to and from said pit and to and from points interest, may lose the quality of revocability. of delivery working men and employees of said city, on work cars only, engaged in loading or 17 R. C. L. 581. In this latter authority, on unloading said gravel; the company agrees to page 582, it is said: receive, transport, and deliver, as loaded and

"That while a license coupled with an interupon the direction of the city, not less than est is irrevocable, this doctrine, although un100 cubic yards of gravel per working day. The questionably correct in a qualified sense, can company further agrees that any lease now only be considered as applicable to the temexisting between it and said Holt is altered to

porary occupation of the land, but confers no permit the sale and removal of gravel under right or interest in the land itself.”, this agreement. “(5) It is understood and agreed, however,

The distinction between a lease and a li. that except as herein expressly mentioned, the lease now existing between said Holt and Mont

cense appears to be very well stated in a gomery Light & Traction Company, or Ray quotation found in Stinson v. Hardy, 27 Or. Rushton as receiver thereof, is in no wise al- 584, 41 P. 116, as follows: tered. This agreement and contract to remain

"A lease is a contract for the possession and in force and effect until November 1, 1921.

profit of land by the lessee, and a recompense "In witness whereof, the said parties have of rent or increase to the lessor, and is a grant hereunto set their hands and seals in triplicate, of an estate in the land.

A license is the day and year first above written. City of

an authority to do some act or series of acts on Montgomery, by W. A. Gunter, Jr., President the land of another, for the benefit of the liBoard City Commissioners. Ray Rushton, as

censee, without passing any estate in the land; Receiver of Montgomery Light & Traction Com- and when the license is to mine upon the land pany, Their Successors and Assigns. D. S. of another, the right of property in the minHolt."

erals, when they are severed from the soil, vests

in the licensee." Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

The above authority, with that of Massot Ludlow Elmore and Arthur B. Chilton, v. Moses, 3 S. C. 168, 16 Am. Rep. 697, conboth of Montgomery, for appellee.

tains a very full discussion with a review of

the authorities upon this subject and the disGARDNER, J. Appellant sued appellee tinction here involved. for the breach of a certain written contract, [3] One of the principal tests in determinrecovering a judgment for the full amount ing whether or not the contract is to be insued for, the trial court having given at his terpreted as a lease or a license is whether request the affirmative charge with hypothe- or not it gives exclusive possession of the sis in appellant's favor. A motion for a new premises against all the world, including the


(102 8o.) owner, in which case a lease is intended, or "This is the result of the familiar maxim whether it merely confers a privilege to oc that when anything is granted, all the means cupy under the owner, thereby indicating a of obtaining it and all the fruits and effects license. 25 Cyc, 640, See, also, Williams v.

of it are also granted." Gibson, 84 Ala. 228, 4 So. 350,5 Am. St. Rep. 368,

We find nothing in the language of the Upon the question of exclusive right, it contract, either in express language or by was said in Massot v. Moses, supra, that: necessary implication, which would exclude

Holt, the owner, from possession of the "Grants of a right to enter the lands of the premises, nor, indeed, would the contract grantor and sever therefrom and appropriate

seem to exclude Holt from the use and reits products or mineral contents, are subject to a presumption not applicable to the case of a moval of the gravel from his pit, so long as sale of personalty, that the grantor did not in- it did not interfere with the express rights tend to exclude his own proprietary right to a granted to the city. One of the principal concurrent enjoyment with the licensee of the tests, nonexclusiveness of the the grant, inpower granted. * * The presumption, in- dicates a license rather than a lease, and deed, demands some positive evidence of an very clearly under this contract plaintiff exclusive intent, but does not influence the could not maintain ejectment against Holt, force of the evidence of such intent."

the owner.
The consideration mentioned

not [4] Of course, the intent to exclude the single, but the city was to pay for the gravel grantor may appear by necessary implica-l as it removed the same, so much per cubic tion of the language used, and the nature of yard, with monthly installments. The conthe consideration. As to the latter, however, tract appears to have been carefully drawn ; it has been held that the fact that the gran- it not only contains no words of demise or tee is bound to pay for the substance appro- the grant of an estate in land, but was not priated by him, according to the quantity witnessed as would be necessary for the conrealized at an agreed rate, whether in kind veyance of such an estate. or in money, does not of itself disclose an in

Without further discussion, however, we tent to exclude the grantor. In Stinson v. are of the opinion that the contract here in Hardy, supra, the court points out other con question does not meet any of the tests of a siderations which have had material bearing lease or a demise of an estate in land, but upon the question of construction of con- that the privileges enumerated therein granttracts, as to whether or not they were in-ed to the city, constitute a license coupled tended as a lease or a license, among them with an interest, that is, a right of removal that the consideration mentioned was single of the gravel during the two years' life of for the entire subject conveyed by the title, the contract. as in Caldwell v. Fulton, 31 Pa. 475, 72 Am. We have read with much interest and care Dec. 760. Another test is there stated to be, the authorities relied upon by counsel for "whether the grantee has acquired any es- | appellant, among them Woodland Oil Co. v. tate in the land in respect to which he may Crawford, 55 Ohio St. 161, 44 N. E. 1093, 34 maintain ejectment." Still another impor- L. R. A. 62; U. S. v. Gratiot, 14 Pet. 526, 10 tant fact given consideration in that author- L. Ed. 573; Johnston v. Cowan, 59 Pa. 275; ity was the absence of words of grant or de- Bruce Coal Co v. Bibby, 201 Ala. 121, 77 So. mise from the agreement, which, it was 545. But we are not persuaded that these held, would indicate that it was the inten- authorities militate against the conclusica tion of the parties that the instrument which we have here reached. They each inshould not operate as a lease.

volve contracts materially different from [5] The contract here in question does not that here under consideration, and we do purport upon its face to be a lease or a con- not consider that a discussion of these auveyance of an estate, but rather a sale by thorities would serve any useful purpose. the plaintiff to the defendant of certain grav

[6] It is insisted in the second place, howel with certain rights as to the removal | ever, that whether the instrument here in thereof. Indeed, its first paragraph begins: question be considered a lease or a license, : "Said Holt hereby sells to the city such grav- the plaintiff was entitled to recover for the el as it may during the life of this contract de- minimum quantity of gravel agreed by the sire to purchase, and shall remove from prop- city to be purchased and removed, less the erty owned by him at Pickett Springs." amount which the city had already paid.

This upon the theory that the valuation of The right of ingress and egress over the this minimum amount of gravel was fixed by lands of the plaintiff, with a right of way the parties as liquidated damages. The aufor roads and tracks, expressly granted in thorities cited deal with leases where a minthe contract, were such rights as would imum royalty is fixed.

Bruce Coal Co. v. seem to follow by necessary implication from Bibby, supra; Johnston v. Cowan, supra. a sale of the gravel in the pit, with the right In the case of Woodland Oil Co, v. Crawof the city to remove it therefrom. As said ford, supra, the contract expressly granted, in Williams v. Gibson, supra,

demised, and let all the petroleum and gas


in or under the land therein described, and ,3. Election of remedles om 14Specifio per. also the land itself, with the exclusive right formance leaves no breached contract. of drilling and operating upon said premis Specific performance of a contract leaves es; and expressly provided that a yearly no breached contract. rental of $128 be paid for the premises in 4. Election of remedies w 15-Decree of spethe event of default on the part of the par cific performance against vendor for interties of the second part.

est, possible to convey under option agreeMuch stress is laid by counsel for appel ment, held bar to action for damages for lant upon the privilege granted to the city of

failure to convey remaining interest. a right of way, and of ingress and egress

Where vendor could not convey complete over the land of the plaintiff, but it is very title because he owned only five-eighths interclear that the essence of the contract was a est, an executed decree against him to convey sale of the gravel, and that these privileges price, held bar to action for damages for fail

his interest in land for five-eighths of agreed constituted but an incident thereto, and; in

ure to convey remaining three-eighths interdeed, under the authority of Williams v. Gibson, supra, may have arisen by necessary implication.

Appeal from Circuit Court, Monroe CounThe contract, as we construe it, in its es- ty; John D. Leigh, Judge. sence, was a contract to sell gravel, and for a breach of such contract the measure of

Action for damages for breach of an opdamages is not the contract price, but the tion contract, by Thomas N. Stallworth and difference between the contract price and the another against James H. McCreary. Judgmarket price or selling price at the place ment for plaintiffs, and defendant appeals.

Reversed and remanded. and time of default. Patterson Lbr. Co. v. Daniels, 205 Ala. 520, 88 So. 657.

H. H. McClelland, of Talladega Springs, We, therefore, do not find ourselves in ac- J. D. Ratliffe, of Monroeville, and James J. cord with the appellant's counsel as to their Mayfield, of Montgomery, for appellant. contention with reference to liquidated dam Hybart & Hare, of Monroeville, for appelages. We are of the opinion the trial court lees. correctly ruled in granting the motion for a new trial, and the judgment to that effect BOULDIN, J. The action is for damages will be here accordingly affirmed.

for the breach of an option contract to conAffirmed.

vey real estate. By the terms of the option,

the vendor agreed to sell and convey a deANDERSON, C. J., and SAYRE and MIL-scribed tract of lands at a fixed price, to be LER, JJ., concur.

paid within a specified time. The vendee elected to take the property under the option, and offered to pay the agreed price within the time named. The vendor refused upon the ground that he could not convey

a complete title; that he was the owner of a MOCREARY V. STALLWORTH et al. five-eighths undivided interest, and the oth(1 Div. 301.)

er three-eighths were owned by tenants in

common, who would not join in the convey(Supreme Court of Alabama. Oct. 23, 1924. ance. The vendee then offered to take his Rehearing Denied Nov. 27, 1924.) tive-eighths interest and pay therefor five

eighths the price agreed to be paid for the 1. Specific performance en 10(1), 95-Partial whole. This offer was refused. failure of title is bar to specific performance

Thereupon, the vendee and his associate, to at vendor's suit, but purchaser may require whom he had transferred an interest in the performance to extent of vendor's title. Partial failure of title is complete bar to offering to pay five-eighths of the agreed

option, filed a bill for specific performance, specific performance at suit of vendor and bar to full performance at suit of purchaser, but price, and praying that they be permitted so latter may waive full performance, and sue for to do, and be decreed all the right, title, and specific performance to the extent to which the interest of the respondent in the lands. vendor is able to convey.

There was a prayer for general relief. The

bill was answered, and on June 5, 1920, the 2. Specific performance on 10(1)-On partial cause proceeded to a final decree upon plead

failure of title, purchase money abated, and ings and proof awarding complainants the vendor required to convey to extent of title. relief prayed. This decree was executed, and

In specific performance, where vendor's title partially fails, if purchaser has paid the complainants received a deed for the five

eighths interest in the lands. purchase money, court will decree compensation to him for partial loss of title, and, if not,

The present suit is an action at law to rewill make partial abatement of purchase money,

cover damages for breach of the option agreeand decree conveyance of vendor's title on pay- ment, by reason of failure to convey the rement of balance.

maining three-eighths interest in the lands. em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexas

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