Williams v. Hardee Son , 140 Miss. 155 ( 1925 )

^* Headnotes 1. Contracts, 13 C.J., sections 75, 191; Sales, 35 Cyc., page 87; 2. Sales, 35 Cyc., p. 209; 3. Evidence, 23 C.J., Section 1813; Sales, 35 Cyc., p. 649; 4. Sales, 35 Cyc., pp. 620, 621; 5. Evidence, 22 C.J., Section 1589; 6. Sales, 35 Cyc., p. 172. Appellees, W.M. Hardee Son, brought this action against appellant, R.F. Williams, in the circuit court of Jones county, to recover damages for an alleged breach of contract entered into by the parties by which appellant contracted to sell and deliver to appellees ten bales of cotton, and recovered judgment for one hundred eighty-one dollars and sixty-four cents, from which appellant prosecutes this appeal.

Appellant introduced no testimony. At the conclusion of appellees' evidence, appellant moved the court to exclude the evidence and direct a verdict in his favor. This motion was overruled. Thereupon the court, at the request of appellees, instructed the jury to return a verdict in their favor and assess their damages at one hundred eighty-one dollars and sixty-four cents. Appellant assigns, as error, the refusal of his request for a directed verdict and the granting of appellees' request for such a verdict.

The contract involved is in writing in this language:

"Sandersville, Miss.

"This is to certify that I do this day hereby agree to deliver to W.M. Hardee Son in September and October, 1923, ten (10) bales of cotton at twenty-five cents (25c) a pound for middling and above. Any grades below middling (if any) to be taken at their value according to differences prevailing in the Meridian market at that time.

"Witness my hand and signature this the 27th day of March, 1923, at Sandersville, Jones county, Miss.

"[Signed] R.F. WILLIAMS.

"L.J. HAYMAN. "Accepted 3/27/1923. "W.M. HARDEE SON."

The appellant delivered on the contract before the expiration of the delivery, period three bales of cotton, aggregating one thousand one hundred seventy-six pounds. Appellees conceiving that the contract contemplated the delivery of ten bales of cotton weighing five hundred pounds each, aggregating therefore five thousand pounds, sued for the difference between the contract price of twenty-five cents and the alleged market price at the time and place of delivery, twenty-nine and three-fourths cents. On the basis of that difference (four and three-fourths cents), appellees recovered one hundred eighty-one dollars and sixty-four cents, being the difference between five thousands pounds and one thousand, one hundred and seventy-six pounds, the weight of three bales delivered on the contract.

Appellant contends that the demurrer to appellees' declaration should have been sustained upon the ground that the contract sued on was unilateral and without consideration. The contract was executed by both parties. It is true it is in the form of a certificate on the part of the appellant as to what he undertook to do, but it was dated and signed by him, and to the left of his signature, appellees indorsed on it as follows: "Accepted 3/27/1923. W.M. Hardee Son." The form in which a contract appears is not material. If it be executed by the parties, and if, on a fair interpretation of its language, the obligations assumed by the respective parties can be ascertained, it will be sufficient in law. Applying that principle, we see no difficulty in holding that the contract here involved is a valid, binding contract on the parties thereto. By its terms, appellant undertook to deliver to appellees ten bales of middling cotton "and above" during September and October, 1923, at a price of twenty-five cents a pound "for middling and above," with the right to deliver grades below middling to be taken at their market value according to the prices prevailing in the Meridian market. When the appellees wrote their acceptance on the contract, that meant that they accepted appellant's proposition and agreed to the terms therein set out and undertook to carry out that part of its obligations therein imposed on them.

We hold that the contract is not one-sided, but, on the contrary, it contains obligations undertaken by each of the parties with an adequate consideration moving to each from the other, and is therefore valid.

Appellant argues that the contract is unenforceable because the contract itself fails to specify the weight per bale of the ten bales of cotton to be delivered, and the testimony fails to show that fact. One witness testified that the weight of a standard bale of cotton was five hundred pounds. It is a matter of common knowledge among those engaged in the cotton trade in the cotton belt of this country, and probably wherever cotton is dealt in, that five-hundred-pound weight is the standard bale of cotton; that, in the making of contracts for the purchase and sale of cotton, it is understood, without being so written in the contract, that a five hundred pound bale is contemplated. The courts will take judicial knowledge of that fact, as they do of other trade customs and practices known and understood by all those engaged therein Therefore it was not necessary to insert in the contract here involved, nor prove, the weight of the bales of cotton sold and purchased.

The appellant contends that appellees failed to establish the market value of the undelivered cotton on the 31st of October, 1923, the last day in which appellant had to make delivery, and that, therefore, appellees were not entitled to recover. We think the evidence on this proposition was sufficient to go to the jury. Mr. Senton, witness for appellees, testified positively that middling cotton on the 31st day of October, 1923, was twenty-nine and three-fourths cents on the streets of Laurel. Again, the court will take judicial notice of what is common knowledge among the cotton trade: that is, that the prices of the various grades and staples of short staple cotton at any given time are substantially the same for each all over the cotton belt, differences in freight alone considered. The market quotations of such cotton at large concentration points, such as New Orleans, Memphis, and Houston, are substantially the prices all over the cotton belt, with the differences in freight considered. There could be no difference, therefore, in the real market value of cotton at Laurel and Sandersville and Meridian, which are only a few miles apart.

Appellant contends that appellees were not entitled to recover, because they failed to show that, before bringing suit, they demanded of appellant the balance of the cotton due them under the contract. As authority for that position, appellant refers to 35 Cyc., pp. 620-624; 24 R.C.L., p. 69, section 334. In the authorities referred to, the general rule is stated as contended for by appellant, that the seller in an action by him for damages for a breach of contract for the purchase of personal property must aver and prove payment or tender of the purchase money, or readiness to receive and pay for the goods. But it is distinctly stated in each of the authorities (and the text is supported by the cases in the footnotes) that, if the goods are to be delivered at a particular time and place and to be paid for on delivery, it is sufficient to allege a readiness and willingness to take and pay for the goods without alleging and proving tender of the purchase money. The reason for this difference is that, where no time and place of delivery is fixed, it is the duty of the purchaser to notify the seller when he desires delivery of the goods, as well as of the place where he desires their delivery; otherwise the seller would not know when or where to deliver the goods, and therefore could not be put in default without such demand on the part of the purchaser. But, where the time and place of delivery is fixed by the contract, the seller knows exactly what he is to do. He knows when to deliver the goods and at what place to deliver them. Therefore no precedent action on the part of the purchaser is required. The seller in that case is in such position that he must act first by making a tender of the goods at the time and place of delivery; otherwise he will be in default.

The contract in this case fixes the time of delivery, namely, at any time in September and October, 1923. The place of delivery, it is true, is not expressly set out in the contract, but the place of delivery was shown by parol testimony to be appellees' place of business in Sandersville, where they were engaged in mercantile business, including the cotton business. If a contract in writing is silent as to an essential act to be done in order to carry it out, such an act may be shown by parol testimony. It is true in this case that no witness testified directly that the cotton was to be delivered to appellees at their place of business in Sandersville. Nevertheless the contract was dated at Sandersville, and the evidence shows that the parties treated that as the place of delivery; that that part of the cotton which was delivered under the contract was delivered to appellees at their place of business. We hold, therefore, that this is a case where the time and place of delivery was fixed, and appellant, the seller, was in default because delivery was not tendered appellees; that it was the duty of appellant during the period fixed in the contract to tender delivery at appellees' place of business in Sandersville.

We find no merit in the other contentions of appellant, and we do not deem them of sufficient importance for discussion.

Affirmed.