Smith v. Wilson Mercantile Co.

PER CURIAM.

The second count of the complaint, (which the reporter will set out) was not subject to the demurrer which was interposed to it by the defendant in the court below. — Elmore, Quillian & Co. v. Parrish Bros., 170 Ala. 499, 54 South. 203; Davis v. Adams, 18 Ala. 264; Berry v. Nall & Duxberry, 54 Ala. 446.

2. Section 3349 of the Code of 1907 declares in substance, among other things, that every contract whereby any person, firm, or corporation shall agree to sell and deliver to any other person, firm, or corporation, any cotton at a place and time agreed upon, if it is not intended by the parties to such agreement that the cotton is to be actually delivered or the value thereof paid, but that money or other thing of value shall be paid to the one party by the other, or to a third party, the party to whom such payment of money or other thing of value shall be made to depend, and the amount of such money or other thing of value to depend, upon whether the market price or value of the cotton so agreed to be sold and delivered is greater or less at the time and place so specified than the price so stipulated and received for the cotton, shall be null and void. We think that plea 7, which the reporter will set out, shows with sufficient clearness that the transaction between the parties to this suit and which is the foundation of this action was offensive to the above section of our Code, and that the trial court therefore erred in sustaining the plaintiff’s (here appellee’s) demurrer to said plea.

3. We gather from this record that in the spring of 1909 the plaintiff, the Wilson Mercantile Company was offering a fixed' price of 10 cents per pound for cotton raised that year near Russellville, the cotton to be delivered in bales in the fall and winter of Í909, but not later than December 15th, and to be paid for when delivered. The plaintiff claims that the defendant, who is a farmer, made an agreement to deliver to it six bales of cotton which the plaintiff agreed to buy at the above price, that he agreed to deliver the cotton by December 15th, that he failed to deliver the cotton as agreed, and that, as cotton was worth much more than 10 cents per pound on December 15th, the plaintiff was damaged to the extent of $135 by reason of the defendant’s breach of his contract. The contract — if one was made — was silent as to the number of pounds which the bales were to weigh, and also as to the grade of the cotton. As the cotton was evidently intended by the parties to come from the crop- of 1909 gathered prior to' December 15, 1909, we think, if the contract was made as claimed, that the quality of the cotton — its grade — was intended to be of that quality usually grown in the defendant’s neighborhood and gathered prior to December 15th. — Davis v. Adams, supra; Elmore, Quillian & Co. v. Parrish Bros., supra.

•As the contract, if made, did not specify the weight of the bales, we think, under the averments of the complaint, the plaintiff had a right to show by evidence, if he could do so, that the bales contemplated by the plaintiff and the defendant, when the contract was made, if it was made, were bales of the usual and customary weight, and also what the usual and customary weight of a bale of cotton is.' — Davis v. Adams, supra; Elmore, Quillian & Co. v. Parrish Bros., supra.

It appears from the bill of exceptions that, if the contract set up in the complaint was in fact made, it was made in the following way: The defendant, in May, 1909, walked into the office of the plaintiff and saw the bookkeeper, Malone, and, according to the testimony of Malone, said “he wanted to put down six bales on a cotton contract, to put in six bales. He did not sign it, but authorized me to sign it. I do not remember whether I made any explanations to him as to the conditions under which we were buying cotton. There was no agreement between the defendant and witness as to the weight or grade of the cotton.” Malone further testified that he did not know whether anything was said between the witness and defendant as to the price of the cotton or the time when it was to be delivered. The above book was not introduced in evidence, and we do not know what light, if any, that book will shed on the question as to whether, on the occasion named, a valid contract between the parties was or was not made. The above conversation, without more, does not show a contract. If the plaintiff in the spring of the year was offering to buy cotton from the people in defendant’s neighborhood, to be delivered in the fall not later than December 15th, at a fixed price of 10 cents per pound, the cotton to be delivered in bales, and if the defendant, when he had the alleged conversation with Malone, knew those facts, then we think that there are circumstances from which a jury may infer that, by virtue of the conversation, the plaintiff contracted to buy and the defendant contracted to sell to .the plaintiff six bales of cotton of customary Aveight and of the average grade of cotton groAvn in his neighborhood and gathered prior to December 15th. — Davis v. Adams, supra.

If it be true that, at the time of the alleged conversation with Malone, the plaintiff Avas making a fixed offer for cotton upon the terms above stated, that fact can be shoAvn by legitimate evidence. For the purpose of adducing evidence tending to' show that the defendant kneio that the offer Avas being made and the terms of the offer, it may be shoAvn by evidence to have been a matter of common- repute in the-defendant’s neighborhood that such offer was being made and the terms of such offer. — Martin v. State, 2 Ala. App. 175, 56 South. 64.

The mere fact, however, that other people made contracts to sell their cotton to the plaintiff at 10 cents per pound, the cotton to be delivered not later than December 15, 1909., had no tendency to show that defendant made such a contract, was irrelevant, and the court committed a reversible error in permitting that evidence to go before the jury. — Langworthy v. Goodall, McLester & Co., 76 Ala. 325.

5. This record contains 49 assignments of error. We have considered only a few of them, as we are of the opinion that the views above expressed, when read in connection with the principles announced in Davis v. Adams, supra, Berry v. Nall & Duxberry, supra, Elmore, Quillian & Co. v. Parrish Bros., supra, and Martin v. State, supra, will be a sufficient guide to the trial court on the next trial of this case, if one is had.

Reversed and remanded.

Note. — The foregoing opinion was prepared by Judge de Graffbnkied, while he was a judge of this court, and is adopted by the court.