Opinion
1 Div. 995.
June 30, 1932. Rehearing Denied November 1, 1932. Reversed on Mandate January 31, 1933. Rehearing Denied March 21, 1933.
Appeal from Circuit Court, Clarke County; T. J. Bedsole, Judge.
Action for breach of contract by O. B. Finklea against D. S. Garrick. From a judgment for defendant, plaintiff appeals.
Affirmed.
Certiorari granted by Supreme Court in Finklea v. Garrick, 226 Ala. 159, 147 So. 680.
Certiorari denied by Supreme Court in Finklea v. Garrick, 226 Ala. 161, 147 So. 682.
Defendant, as a witness, testified that after the agreement as to the sale of cattle was made, he sold plaintiff a horse for which plaintiff agreed to pay $100, but which he had never paid; that thereafter plaintiff sent to defendant a check for $100; that defendant took the check and went to the light and saw what was written upon the back of it, whereupon he brought it back and stated he would not accept it; that the one who had brought the check stated, "You done accepted it." To this defendant replied that he had not. The check offered in evidence was payable to Garrick and signed by Finklea. On the back of it was writing to the effect that it was in full payment for cattle.
The fourteenth assignment of error is as follows: "The court erred in its ruling (Tp. 32, bottom of page)."
Defendant filed a plea of tender asserting his right to credits for cattle delivered, for a horse sold plaintiff, and other items, and that of the $500 originally paid defendant by plaintiff, defendant was due only $160, which had been tendered. Judgment went for defendant on this plea of tender.
These charges were refused to plaintiff:
1. "The Court charges you that if you believe the evidence to your reasonable satisfaction then the defendant would be charged with interest on $500.00 from August 10, 1927 to March 1st, 1928."
2. "The Court charges you that if you believe the evidence to your reasonable satisfaction you must find for the Plaintiff on defendant's plea of tender."
3. "The Court charges you gentlemen of the jury, that if you believe the evidence to your reasonable satisfaction then you can not find for the defendant on his plea of tender."
4. "The Court charges you, gentlemen of the jury, that unless you believe from the evidence that no interest was tendered the Plaintiff by the defendant on the $160.00 then you must find for the Plaintiff."
5. "The Court charges you, gentlemen of the jury, that if you believe the evidence to your reasonable satisfaction you must find for the Plaintiff."
The following charges were given for defendant:
1. "If you believe from the evidence that D. S. Garrick agreed to sell O. B. Finklea only such cattle as he could locate and deliver, and that he complied with the contract, and if you believe further that the amount tendered to Plaintiff was all that defendant owes Plaintiff, including interest, then you should find for the defendant on his plea of tender."
2. "I charge you gentlemen of the jury that if you believe the evidence you should find for the defendant on his plea of tender."
3. "I charge you gentlemen of the jury that if you believe the evidence, the plaintiff could not recover a verdict at your hands for the alleged breach of contract."
Quincy W. Tucker and Woodford Mabry, both of Grove Hill, for appellant.
A tender of the entire amount, including interest, must be made. Charges requested by plaintiff were erroneously refused. McCalley v. Otey, 99 Ala. 584, 12 So. 406, 42 Am. St. Rep. 87; Smith v. Anders, 21 Ala. 782; Daughdrill v. Sweeney, 41 Ala. 310. Charge 1, given for defendant, was argumentative, and should have been refused. Steed v. Knowles, 97 Ala. 573, 12 So. 75. Questions as to which there is a conflict must be submitted to the jury. Neff v. Williamson, 154 Ala. 329, 46 So. 238; Sloss I. S. Co. v. Tilson, 141 Ala. 152, 37 So. 427; Louisville N. R. Co. v. Sullivan T. Co., 138 Ala. 379, 35 So. 327; Garren v. Fields, 131 Ala. 304, 30 So. 775; Birmingham M. R. Co. v. Tenn. C., I. R. Co., 127 Ala. 137, 28 So. 679; Bomar v. Rosser, 123 Ala. 641, 26 So. 510; 38 Cyc. 1536 (45). The affirmative charge should not be given where there is a conflict in the evidence or different inferences can be drawn from it. Tenn., C., I. R. Co. v. Stevens, 115 Ala. 461, 22 So. 80; Sanders v. Edmonds, 98 Ala. 157, 13 So. 505; 38 Cyc. 1540, 1568, 1577; Allman v. Gann, 29 Ala. 240; Lawler v. Norris, 28 Ala. 675. A purchaser's readiness and ability to pay for goods contracted for is sufficiently shown, prima facie, by his demand for their delivery. Baker v. Lehman, Weil Co., 186 Ala. 493, 65 So. 321; Squier v. Hunt, 3 Price, 68; Biggers v. Pace, 5 Ga. 171. Garrick could not deliver the cattle, and it was not necessary that Finklea tender the purchase price, 29 Cyc. 1543, 1544.
Adams Gillmore, of Grove Hill, for appellee.
Having failed to prove his ability to pay for the cattle, Finklea was not entitled to damages for nondelivery. Baker v. Lehman, Weil Co., 186 Ala. 493, 65 So. 321; Moss v. King, 186 Ala. 475, 65 So. 180; Long v. Addix, 184 Ala. 236, 63 So. 982; McGeehee v. Hill, 1 Ala. 140. There was no duty on the part of Garrick to return the $500 or any part of it prior to the delivery date of the cattle, and interest would not begin to accrue until there was an obligation to pay. The tender being made when due, there was no interest due. 15 R. C. L. 11; Dodge v. Tulleys, 144 U.S. 451, 12 S.C. 728, 36 L.Ed. 501; Long-Lewis Hardware Co. v. Ewing, 13 Ala. App. 435, 68 So. 794.
O. B. Finklea, appellant, here, brought his suit in the court below, against D. S. Garrick, appellee, to recover of him, said Garrick, the sum of $4,500 alleged to be due by virtue of a certain contract entered into between said parties concerning the purchase and sale of certain cattle.
Under the plaintiff's version of the facts, he purchased from the defendant 200 head of cattle at $8 per head, to be delivered by defendant to plaintiff, at defendant's place on November 1, 1927; that $500 of the purchase money was paid in cash on that day, and the remainder was to be paid on the delivery of the cattle; that the time for delivery was extended by mutual agreement from November 1, 1927, to March 24, 1928; and that plaintiff was to come and receive the delivery of the cattle on being notified so to do by the defendant.
The defendant's version of the contract is that the plaintiff agreed to purchase defendant's cattle, which defendant thought would run around 200 head, but which were too badly scattered to be sold at that time; that plaintiff paid him $500 with the understanding and agreement that if plaintiff failed to get the cattle, then defendant was to pay the plaintiff his money back; that the plaintiff was to come on November 1, 1927, and get the cattle, and if he got more than $500 worth of cattle, the plaintiff was to pay him the difference. That is to say, the defendant received from plaintiff $500 on August 10, 1927, to be paid for cattle at $8 per head, to be delivered November 1, 1927, when plaintiff was to come and accept delivery. Any deficit in the number of cattle at $8 per head was to be made good by defendant to plaintiff in money.
The contract sued upon, whether it be according to the version of Finklea, the plaintiff, or as testified to by Garrick, the defendant, constituted a valid and binding agreement between the parties casting upon each of them certain duties and obligations. According to the plaintiff's version of the contract, he (Finklea) was under the duty to demand performance thereof by Garrick, the defendant, on the day the same was to be performed, and at the place where delivery of the cattle was to be made, and to then and there be able, ready, and willing to receive the 200 head of cattle and pay to Garrick the $1,100, balance of purchase money. Garrick was under the duty of having 200 head of cattle at his place on November 1, 1927, ready for delivery to Finklea, on the payment by Finklea to him of the sum of $1,100, balance purchase money.
Under Garrick's version of the contract it was the duty of Finklea, the plaintiff, to come to Garrick's place and receive $500 worth of cattle, at $8 per head, on November 1, 1927, and it was Garrick's duty on that day to have at his place $500 worth of cattle ready for delivery to Finklea, or then and there to pay him his money back, or such portion thereof as the cattle ready for delivery, at $8 per head, failed to pay.
Was the defendant on the whole evidence entitled to the affirmative charge if the contract was in substance as testified to by Finklea, the plaintiff? It must be conceded that Finklea, the vendee, could not have remained wholly inactive and still claim a breach of the contract by Garrick's, the vendor's, failure to perform. It was enough, however, for Finklea to demand performance at the proper time and place, being then, himself, able, ready, and willing to perform on his own part. Barney Coal Co. v. Davis, 1 Ala. App. 595, 56 So. 1023; Long v. Addix, 184 Ala. 236, 63 So. 982, 983; Baker v. Lehman, Weil Co., 186 Ala. 493, 65 So. 321; Sloss-Sheffield Steel Iron Co. v. Payne, 192 Ala. 69, 68 So. 359.
The complaint avers that: "Although, he (meaning plaintiff) has complied with all of the provisions of said agreement on his part, and was ready, willing and able to pay the purchase price in cash to the defendant, as agreed upon, as aforesaid, upon delivery of said cattle to him, and made repeated demands on the defendant for the delivery of said cattle to him, the plaintiff, the defendant has failed to comply with his part of said agreement by making delivery of said cattle to plaintiff." The pleading recognizes the rule of duty upon the plaintiff above declared. Does the proof anywhere show that on November 1, 1927, the plaintiff was ready, willing, and able to pay to the defendant the balance of purchase money for said cattle? Does the proof show, or tend to show, the means and facilities of plaintiff for paying said balance of purchase money? Very slight evidence was necessary to show such readiness and ability. A tender of the balance was not necessary, but it most assuredly was necessary for the plaintiff to make proof of some fact or facts tending to show his ability to pay the balance of purchase money. Plaintiff testified: "I never did make any demand on Mr. Garrick and offer to pay him the balance of purchase price on 200 head of cattle I purchased from him but I asked him to deliver the cattle. That he had asked Mr. Garrick to deliver 177 head of cattle to him which was the number due to be delivered to him under the contract of purchase of 200 head of cattle." According to Finklea's own statement, Garrick had delivered to him 25 head of cattle, which had been received under the contract. Garrick was under no duty then to deliver more than 175 head of cattle, and the plaintiff had no right under the contract to request the delivery of 177 head. Garrick claims to have delivered 31 head, making the remainder to be delivered 169 head. There is not one word of testimony from Finklea, himself, or from any other witness, in so far as the record in this case discloses, that Finklea was ready, willing, and able to pay the balance of purchase money. There is not a line of testimony as to his credit standing, as to his business standing, or as to his various transactions showing that at the time he made demand on Garrick for the performance of the contract on Garrick's part, that the plaintiff was then ready, willing, and able to pay the defendant the balance of purchase money, and for this reason the defendant was entitled to a directed verdict in his behalf as requested in the general charge given for the defendant. Offutt v. Wells, 42 Ala. 199; Moss v. King, 186 Ala. 482, 65 So. 180, 183; Coley v. English et al., 209 Ala. 688, 96 So. 909.
In accordance with the above views, we are of the opinion, and we accordingly hold, that the trial court did not err in refusing to give written charges 1, 2, 3, 4, and 5, requested by the plaintiff.
Under our construction of the law as applicable to the facts of this case, the trial court did not err in giving written charges numbered 1, 2, and 3, at the request of the defendant.
If there was any error committed by the trial court in sustaining an objection to a question propounded to the plaintiff calling for the exact conversation that occurred between him and the defendant at the time plaintiff purchased 200 head of cattle, it was error without injury because the witness had already testified in detail as to this conversation, and afterwards testified in detail thereto, as shown by the record (pages 26 and 27).
The trial court did not err in sustaining an objection to the question propounded to the plaintiff eliciting testimony as to whether or not the plaintiff had sold the cattle that he had claimed to have purchased from the defendant.
The trial court did not err in admitting in evidence a check for $100, with the indorsement thereon, the same being limited by the court as evidence of the terms of a particular trade or agreement.
We do not find any ruling of the trial court at the bottom of page 32 of the transcript, and therefore hold that the fourteenth assignment of error does not present any question for our review.
We have given attentive care and consideration to this record and find that the rulings of the trial court are in harmony with the views hereinabove expressed, and with the cases cited, and therefore hold that there is no error in the record of which the appellant can justly complain, and the judgment of the lower court is accordingly affirmed.
Affirmed.
Reversed and remanded on authority of Finklea v. Garrick, 226 Ala. 159, 147 So. 680.
On Rehearing.
By express terms of the statute, section 7318, Code 1923, "the decisions of the supreme court shall govern the holdings and decisions of the court of appeals," etc. By virtue of the foregoing statute this court entered an order, on remandment from the Supreme Court, reversing and remanding the judgment of the lower court, which had been here originally "affirmed." This application for rehearing is presented and filed by appellee and the correctness and validity of said last order is involved. It would serve no good purpose for us to again express our views on the single point of decision involved in this case. The decision of the Supreme Court, as stated, controls. This court, under the facts, held no sufficient or legal demand by plaintiff for delivery was shown to have been made. The Supreme Court, 147 So. 680, placed a different construction upon the facts and held that "the plaintiff had asked the defendant to deliver the cattle. This was the equivalent of a demand for the delivery." We, therefore, perforce, must overrule appellee's application for rehearing and this is so ordered. However, in fairness to appellee we think it but proper to state there was nothing to show the time, place, circumstances, or conditions when plaintiff "asked the defendant to deliver the cattle." Upon authority of O. B. Finklea v. Garrick, 226 Ala. 159, 147 So. 680, this application for rehearing is overruled.