Kenan, McKay Spier v. Home Fert. Cotton Oil , 202 Ala. 29 ( 1918 )

Since pertinent rules of the Alabama Cotton Seed Crushers Association were made a part of the contract, with particular reference to section 3 of rule 15 set out in the statement of the case, ante, the appellant insists that the letter of defendant's manager, set forth in count 4, effected to afford an estimate of the amount of the production, within the contemplation of that section (3) of rule 15. It may be remarked, at this point, that the exigencies of this case do not require a construction of section 3 of rule 15. The letter is to be read and interpreted in the light of the circumstances surrounding and relating to the transaction and of the manifested purposes of the parties. As we understand the terms of the letter — and they are not at all obscure — the clear intent was not to undertake to give an estimate of the mill's production of "linters," but, on the contrary, to merely recite an expectation on the part of the writer with respect to the amount of "linters" the mill might produce. The figures employed in the letter token the entertainment by the writer of an opinion that was markedly uncertain. The writer, himself, recognizing this uncertainty, expressly stated his company's desire to only engage to sell the output of the mill, thereby implying, necessarily we think, that the obligation assumed should only comprehend what the mill made. This idea was repeated, and thereby emphasized, through the expression, in the concluding lines of the letter, that the seller's engagement was, and should be so understood, to impose the obligation to only deliver "what we make," thereupon excluding the possibility of an undertaking on the part of the seller to deliver any particular quantity, estimated or otherwise. Count 4 proceeded on an opposite theory, and was hence subject to the demurrer.

In order to attribute error to the trial court in sustaining the demurrer to the fifth count, it must be concluded that the contract declared on required the defendant to operate its mill, at least when practicably possible to do so, during the period stipulated, and, in consequence, obliged it to produce "linters" for delivery to the plaintiff. We find in the contract no such obligation. The seller engaged to sell its "make" of "linters." It did not obligate itself to make any "linters." There was no manifestation of an intent to so engage. The terms employed disclose that the seller's purpose was to sell "what we make," the season's make, no purpose to engage to sell a definite or even an estimated number of bales of "linters." It is not possible to imply an obligation to make an article from an assumption of the limited obligation to sell, not a definite number of an article, but simply, merely, what the seller makes. Where the seller engages to sell and deliver the output of his plant and the buyer engages to take and pay therefor, the buyer is liable to the seller for the damages resulting from the refusal of the buyer to receive and pay for the make or output that the seller's plant has actually produced. McIntyre Lumber Co. v. Jackson Lumber Co., 165 Ala. 268,51 So. 767, 138 Am. St. Rep. 66. In such case the certainty, as well as the mutuality, essential to support the contract is afforded by the act, the outlay of the seller in performing the contract to the extent at least of producing, as upon the promise of the buyer to receive and pay for, the article the contract describes, satisfactorily to the doctrine stated in McIntyre Lumber Co. v. Jackson Lumber Co., supra, and also in Evans v. Railway Co., 78 Ala. 341, 345, 346; Sheffield Fur. Co. v. Hull, 101 Ala. 446, 477, 14 So. 672; Pratt Coal Co. v. Short, 191 Ala. 378, 390, 391, 68 So. 63. Jones v. Lanier, 73 So. 535,¹ was an action by the seller against the buyer, and involved considerations not pertinent to the present appeal. The decision in Loeb v. Cotton Oil Co. (Tex.Civ.App.)93 S.W. 515 — an action by the seller against the buyer for damages resulting from the refusal of the buyer to receive 66 bales of "linters" that the seller had manufactured and tendered within, according to the decision of the court, the terms of the contract — illustrates the doctrine to which we have just adverted. The Court of Appeals of Georgia, in Dawson Cotton Oil Co. v. Kenan et al. (Ga.App.) 94 S.E. 1037, accepted, in effect, the doctrine just stated, and from it, as a premise, held that the seller was bound by the contract to make "linters," to operate its mill, unless prevented by excusing causes; this, in order to avert what the court conceived to be the unavoidable, undesirable consequence of deciding that the parties had made a unilateral contract, a contract binding one and not binding the other of the parties. While yielding the utmost deference to the learned court so pronouncing, this court cannot accept its conclusion in the premises. Since there was originally no obligation assumed by the seller to make the article, to operate its plant, the buyer's obligation to receive what the seller actually made is referable to the fact that the seller acted upon the buyer's promise and engagement to take what the seller made, whereupon, in our opinion, it results that the alternative, to which the learned Georgia court gave its approval, of either reading the contract to bind the seller to make the article, to operate its mill, or, on the other hand, of pronouncing the contract unilateral, was not presented for acceptance; the buyer's obligation to receive and pay for the articles actually made by the seller being predicated of the seller's obligation to deliver to the buyer all of the article made by the seller's plant. The seller having acted upon the buyer's promise to take his output, the buyer becomes bound to take what the seller has made, in reliance upon the buyer's promise, and the seller becomes likewise bound to deliver the output of his plant. Certainty, consideration and mutuality are all afforded and present in such circumstances. This is the doctrine of McIntyre Lumber Co. v. Jackson Lumber Co., supra; and its effect was given concrete illustration in that decision. In sustaining the demurrer to the fifth count, the court correctly concluded that the contract therein declared on did not require the defendant to make "linters," to operate its mill.

The judgment is affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

¹ 198 Ala. 363.