The record shows that plaintiffs, on account of the adverse ruling of the trial court in sustaining defendants' objection to the contract, the foundation of the suit, when it was offered as evidence, were forced to take a nonsuit. The record further shows that, at the time the contract was last offered in evidence — it being offered three times — the plaintiffs had not closed their case, and had only examined two witnesses. The ground on which the contract was excluded is that it is a unilateral agreement *Page 444 and imposes no obligation on the defendants. This ruling of the court presents the only question in the case. Priebe v. Southern Ry. Co., 189 Ala. 427, 66 So. 573.
The averments of the complaint and the proof offered show that at the time the contract was entered into the defendants were engaged in the sawmill business, manufacturing lumber for sale on the open market; that they were the owners of large tracts of timber locally known as the Ezzell and Seaman tracts, subject to a time limit for its removal, on which there were 19,000,000 feet of timber, board measure; that they had on these tracts five or more large sawmills, then in operation, some of which they had continued to operate up to the time of the trial; that plaintiffs had hauled under the contract in question over 4,000,000 feet for which defendants had paid them the contract price for hauling. It was also shown that defendants were still in the business of cutting and removing the timber from said tracts, sawing it into lumber, and transporting it to the market; that by adopting a different method of transporting the lumber than that provided in the contract with plaintiffs, the cost was $5.25 per thousand, while it cost $6.25 to move it under the contract with the plaintiffs.
It was also shown that defendants had, in the main, discontinued delivering the lumber to the crossroads relay point as provided in the contract, and had notified the plaintiffs that it would refuse to allow them to continue their hauling operation under the contract.
The pertinent provisions of the contract are as follows:
"(1) The parties of the second part (plaintiffs) hereby agree to haul and deliver to the plant of the first parties (defendants) all of the lumber cut by first parties off of what is known as the Seaman and Ezzell tracts of timber, taking said lumber from the crossroads, on the Russellville and Red Bay road, about thirteen miles from Red Bay, and delivering to plant at Red Bay, taking good care of the lumber and unloading same as instructed by agent of the first parties at the planing mill.
"(2) The price mutually agreed upon by the contracting parties is to be $3.25 per M feet on green lumber, and 50 cents per M less on dry lumber, for the first four million feet. After this amount is hauled there is to be a revision of prices in case lumber has declined as much as $4.00 per M feet or gas and feed has gone up as much as 25 per cent.; there not being a revision of more than 50 cents per M feet either up or down."
The majority opinion affirms the ruling of the trial court holding that the contract is unilateral, for the reason that "there is nothing in the instant contract giving plaintiffs the right to compel the lumber company to (1) cut the timber from the large tracts of land owned by them (Seaman and Ezzell tracts of 6,000 acres); (2) or to compel them to saw the stock into rough lumber in one of its four or five mills, and deliver it at its 'crossroads' yard or to receive all of its lumber at its planer at Red Bay."
It is a familiar rule, well grounded in reason, that "it is the duty of the courts to lean against the destruction of contracts on the ground of uncertainty." Holst Co. v. Harmon,122 Ala. 453, 26 So. 157; Elmore, Quillian Co. v. Parrish Bros., 170 Ala. 499, 54 So. 203.
"A contract does not lack mutuality merely because every obligation of the one party is not met by an equivalent counter obligation of the other party. * * * Even though the promise of one of the parties to a bilateral contract is not stated expressly therein, such promise is sometimes implied from the nature of the terms of the contract. Frequently it happens that contracts on their face and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties and the consideration upon which one party assumed an express obligation that there should be a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be implied. As if the act to be done by the party binding himself can be done only upon a corresponding act being done or allowed by the other party, an obligation by the latter to do, or allow to be done, the act or thing necessary for the completion of the contract will necessarily be implied." 6 R. C. L. 689, § 95, and authorities there cited in notes 12 to 15; 13 C. J. p. 334, § 180, and authorities cited in note 37; Butler v. Thomson, 92 U.S. 412,23 L.Ed. 684; Mississippi River Logging Co. v. Robson, 69 F. 773, 16 C.C.A. page 400.
This principle is applicable here. It seems to be conceded that the contract was bilateral and binding on the defendants as to the 4,000,000 feet already cut and transported under the contract, and there is nothing in the evidence showing or tending to show that lumber had declined in price, or that gas had increased in price, necessitating a revision in the contract price for hauling.
It is clear that the timber cut and manufactured into lumber, subsequent to the time the 4,000,000 feet were cut and hauled by the plaintiffs, falls within the same category as the 4,000,000 feet, and, if the contract was binding on the defendants to deliver the 4,000,000 feet at the crossroads relay point, the same obligation applies to all timber subsequently cut and transported, and the obligation to deliver such lumber at the relay point must necessarily follow. Therefore, if it be conceded that the contract imposes no obligation on the defendants to continue the business of cutting and manufacturing the timber into lumber, yet, so long as they elect *Page 445 to continue in the business of cutting, manufacturing, and transporting, the obligation under the contract to deliver the lumber to the relay point, so that the plaintiffs could comply with their contract, existed, and defendants' failure to do so constituted a breach of the contract.
Moreover, it was shown that some of the lumber cut, subsequent to the notice to plaintiffs to cease their hauling under the contract, was delivered at the crossroads relay point and was moved by parties other than the plaintiffs. No sound reason can be stated why the lumber so delivered at the relay point was not within the contract, and the denial to the plaintiffs of the right to transport it to the delivery point at the planer was a clear breach of the contract.
In Jones v. Lanier, 198 Ala. 363, 73 So. 535, cited in the majority opinion, the appellee had "assumed to take and pay for the entire output of appellant's Baker's Creek mine for nine months at a stipulated price per ton, subject to appellant's coal 'proving entirely satisfactory' to appellee." In that case the court held that the facts pleaded, showing that the coal proved to be unsatisfactory to appellee, authorized the appellee "to rescind the contract as for a lack of performance on plaintiff's part."
In Lucas E. Moore Stave Co. v. Kennedy, 212 Ala. 193,101 So. 894, there was "an agreement only on the part of Kennedy Bros. to sell at a stipulated price their production for the year 1920 of white oak staves. There was no obligation on their part to produce any staves, but only to sell at the agreed price such staves as they in fact did produce for that year." The court held that "the stave company could not have maintained an action for damages growing out of a breach of such agreement for a failure on the part of Kennedy Bros. to produce any staves during the year 1920"; therefore the contract, in respect to this provision to produce, was wanting in mutuality. If Kennedy Bros. had produced a quantity of staves and the stave company had refused to take the staves at the agreed price, or if Kennedy Bros. had refused to deliver the staves so produced, to the stave company under the contract, the results would have, no doubt, been different.
In Lucas E. Moore Stave Co. v. Woodley, 213 Ala. 570,105 So. 878, it was held that the contract there involved was —
"unilateral and wanting in mutuality, as there is nothing in it binding or obligating the plaintiffs to do anything — just an agreement of the defendant to take all staves at the price fixed as per classification given within the period fixed."
Other cases cited in the majority opinion are subject to differentiation for reasons patent on their face.
Here the defendants had no title to the lands on which the timber was standing; they only owned the timber, subject to a time limit for its removal, and it cannot be assumed that, when they entered into the contract with the plaintiffs, they intended to abandon their operations, and in fact it appears that they have not. Therefore, so long as they continue to operate, they are obligated, by the contract with plaintiffs, to deliver all lumber manufactured from timber cut off of the named tracts, to the relay point, so that the plaintiffs may perform their part of the contract.
The mere fact that they can move the lumber at less cost gives them no right to rescind or violate the contract, or to deny plaintiffs the right to perform.
The ruling of the court cannot be justified on the theory that the plaintiffs failed to make out a case. When the contract was last excluded, the plaintiffs had not closed their testimony, and the rejection of the contract made it useless for the plaintiffs to proceed further.
Nor can the trial court be sustained on the theory that the complaint does not state a cause of action. The ruling of the trial court was to the contrary, and the correctness of that ruling cannot be questioned on this appeal.
I am therefore of opinion that the court erred in rejecting the contract as evidence, and that the nonsuit should be set aside and the cause remanded for a new trial.
SOMERVILLE, J., concurs in the dissent.