The demurrers to count 3 of the complaint should have been sustained.
While the allegation that the plaintiffs "were ready, willing and able to perform said contract according to the terms thereof," was sufficient to show ability to comply with the contract within the time specified by the terms thereof, on the part of the plaintiff, yet the breach thereof, charged to the defendant, that it "breached said agreement by refusing to accept" the commodity named in the agreement, is not an allegation that the refusal to accept occurred while the contract was binding upon the defendant. Under the terms of the contract, as set out in the complaint, the defendant, who was the buyer, was bound to accept the commodity during the month of December, and a refusal to accept during the month of delivery, delivery being tendered, or an absolute repudiation of the contract, and notification to the seller that he will not accept the property *Page 31 when the time for delivery arrives, being made any time after the execution of the contract and before the final date of delivery had expired, would have constituted such refusal as would have been a breach of the contract on the part of the buyer, and would have authorized the seller to treat the contract as breached. Jebeles Colias Confectionery Co. v. Stephenson, 6 Ala. App. 103, 60 So. 437.
"A party seeking to recover as for the breach of a contract containing mutual and dependent covenants or stipulations must aver and prove that he was able, ready and willing to perform, as well as that defendant failed to perform on his part." Duffey v. Southern Mfg. Co. (Ala. Sup.) 92 So. 545;1 Moss v. King, 186 Ala. 475, 65 So. 180; Terrell v. Nelson, 177 Ala. 596,58 So. 989.
It would appear, however, that under Supreme Court Rule 45 (175 Ala. xxi, 61 South. ix), and numerous decisions of that court construing this rule, that, as applied to the facts in the instant case, the ruling of the trial court in respect to the demurrers did not injuriously affect any substantial rights of the party complaining. Jackson v. Vaughn, 204 Ala. 543,86 So. 469; Best Park Am. Co. v. Rollins, 192 Ala. 534,68 So. 417, Ann. Cas. 1917D, 929; Vance v. Morgan, 198 Ala. 149,73 So. 406; Clinton Mining Co. v. Bradford, 200 Ala. 308,76 So. 74; So. Ry. Co. v. Harris, 202 Ala. 263,80 So. 101; Ex parte Minor, 203 Ala. 481, 83 So. 475, 10 A.L.R. 687.
The suit was for damages claimed by the seller growing out of an alleged breach of a contract, whereby the appellant (buyer) agreed to buy from appellee (seller) 150 tons velvet bean meal of a certain grade, for delivery during the months of November and December. The question of the November delivery of 50 tons was eliminated by amendment of the complaint, the trial being had on count three, which only claimed damages for failure of the buyer to accept the December delivery; the seller alleging they were ready, willing, and able to make delivery during the month of December of the meal according to the terms of the contract.
It is a sound proposition of law that if the buyer notified the seller that they would not receive or accept the meal in case they delivered it, and as stated before this refusal was within the time the seller had to deliver under the terms of the contract, this would be a breach of the contract on the part of the buyer, and the seller would be excused from delivering the meal as a condition precedent to a recovery. Terrell v. Nelson, supra. In all such cases the facts of the particular case must determine whether the seller, under the circumstances, was justified as treating the contract as at an end, for, to use the language of the Supreme Court of the United States in Smoot's Case, 15 Wall. 36, 21 L.Ed. 107:
"A mere assertion that the party will be unable, or will refuse to perform his contract, is not sufficient; it must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for if he afterwards continue to urge or demand a compliance with the contract, it is plain that he does not understand it to be at an end." Jebeles Colias Confectionery Co. v. Stephenson, supra.
In the instant case, the appellant's notation on the appellee's letter of November 28th that, "November meal automatically has canceled itself and as for December meal we will not honor your drafts or handle your meal under any consideration as you won't even adjust past shipments. Consider the contract canceled and the incident closed. Save your postage," was such an unequivocal and absolute refusal to comply with its promise on the part of the appellant, and the evidence shows was so considered and acted upon as such by the appellee. It thus appears that the refusal to accept was during the time when such duty rested upon the defendant.
There was no error in the ruling of the trial court that the contract was divisible, and that on failure to comply with the provisions as to the December meal suit could be maintained for such breach. While the execution of the contract appears of one date, and calls for the delivery of one kind of commodity, viz. velvet bean meal, yet the months of delivery are different, the price of the commodity is different for each month, and the freight charges and war tax are to be paid by the seller on the November contract, while the freight charges and war tax were to be paid by the buyer on the December contract. It thus appears that the commondity was to be delivered in installments, and the price was proportioned to and payable on the several installments. If the plaintiff breached its November delivery, to the defendant's damage, it has its recourse by way of counterclaim in this suit or by way of separate action. Ollinger Bruce Dry Dock Co. v. James Gibbony Co., 202 Ala. 516, 81 So. 18; J. C. Lysle Milling Co. v. North Alabama Grocery Co., 201 Ala. 222, 77 So. 748; Rock Island Sash Door Works v. Moore-Handley Hardware Co.,147 Ala. 581, 41 So. 806; Sims v. Ala. Brewing Co., 132 Ala. 311,31 So. 35; Johnson Thornton v. Allen Jemison,78 Ala. 387, 56 Am. Rep. 34.
Appellant, under its plea of set-off or counterclaim, claimed damages for shortages in two cars, one of beans and the other of meal, shipped by appellee to the appellant under prior contracts. The two contracts *Page 32 under which these alleged short cars were shipped contained the following provisions bearing upon the question of the passage of title to the property shipped:
"Price $2.75 per bushel f. o. b. Arlington, Ga. Terms A.D. B. L. attached, payable on arrival and inspection of car."
Both of these cars were shipped from Arlington, Ga., consigned to appellant at Memphis; appellee drawing on appellant at Birmingham for the amount as shown by bill of lading, which draft was paid before the arrival and inspection of the cars at Memphis. The letters A.D. B. L., contained in the contract, were shown by the testimony to mean "arrival draft, bill lading attached," and taken in connection with the other words used therewith meant that the buyer was to be under no obligation to pay the price by taking up the draft until after the arrival of the goods at destination and the inspection thereof. The testimony further showed that the seller took out in these shipments, in the name of the buyer, a bill of lading containing what is known as a "shippers load and count bill of lading," under which the carrier does not acknowledge to have received on board any particular amount or character of goods. The testimony for the appellant tended to show that there was a shortage as found by inspection on arrival of the two cars at Memphis, and, as stated before, claimed the amount of such shortage by way of set-off. The testimony for the appellee tended to show that there was no shortage at the point of delivery, viz. Arlington, Ga. Appellant contends that upon delivery by it to the carrier of the commodity at Arlington, Ga., and bill of lading taken in the name of the buyer, the title to the property at such place passed out of the seller and into the buyer, and that the railroad company, under these facts, was acting as the agent of the consignee and not of the consignor. This contention on the part of the appellee was sustained by the trial court, as is evidenced by the giving of the following written charge for the appellee, which is made the basis of an assignment of error. The charge reads as follows:
"If the jury believe from the evidence that there was no shortage in the two cars for which shortage is claimed by defendants in its counterclaim when said cars were delivered by plaintiffs to the common carrier at Arlington, Ga., then they should not allow defendants any sum under said counterclaim."
Aside from whatever effect a "shippers load and count bill of lading" may have in this case, it is plain that under the terms of the contract the place of delivery to the defendant was at Memphis, and that the trial court was in error in giving the above written charge. The recent case of Armstrong v. Wilcox (Ala. Sup.) 92 So. 645,2 appears to be decisive of this proposition. In the Armstrong Case the bill of lading was taken in the name of the buyer, but it was held where the delivery was f. o. b. Terea Cia, Fla., the title did not pass to the buyer until arrival at Montgomery, where seller draws with bill of lading attached, it being stipulated in the agreement that payment was to be made in Montgomery on arrival of car. In the instant case payment was to be made "on arrival and inspection of car," and delivery was made f. o. b. Arlington, Ga., consigned to buyer, with draft and bill of lading attached, just as in the Armstrong Case, supra, with the further right in the case at bar that the draft was payable on arrival and inspection of the car. If there was a shortage in the cars on arrival at Memphis, the point of destination, under the terms of the contract, the amount of such shortage was a proper subject of set-off against the demand of the plaintiff, as under the contract title did not pass to the buyer until arrival at Memphis.
The trial court adopted the wrong measure of damage in its charge to the jury in this case. The contract imposed upon the plaintiff no duty to manufacture the meal, consequently evidence of the cost of beans and labor incurred in the manufacture was illegal. The plaintiff's obligation under the contract was merely to deliver meal of a certain grade. They may have gone into the market and purchased it or had it given to them.
If the defendant repudiated the contract, the plaintiff is entitled to recover the value of the contract to him at the time of such repudiation, and in this case, where the evidence shows the repudiation was before the delivery, or the time for the delivery of the commodity named in the contract, the measure of damage is the difference between the contract price of velvet bean meal, viz. $30 per ton, and the market value of meal of the quality called for by the contract price of November 30, 1920, at Arlington, Ga., this amount less, however, the value of the shortage shown by the evidence to have existed in the two cars of beans at Memphis, shipped under prior contracts. Jebeles Colias v. Stephenson, supra.
It follows that the judgment must be reversed, and the cause remanded.
Reversed and remanded.
1 207 Ala. 369.
2 207 Ala. 390. *Page 33