Opinion
3 Div. 530.
October 27, 1921. Rehearing Denied November 17, 1921.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Hill, Hill, Whiting Thomas, of Montgomery, for appellant.
The court erred in sustaining demurrers to plea 1. Section 6300, Code 1907; 12 Ala. App. 456, 68 So. 545; 201 Ala. 194, 77 So. 720; 15 Ala. App. 532, 74 So. 88; 108 Ala. 262, 18 So. 886; 192 Ala. 265, 68 So. 890; 184 Ala. 242, 63 So. 982; 66 Ala. 582; 9 Ala. App. 164, 62 So. 388; 167 Ala. 434, 52 So. 843, 29 L.R.A. (N.S.) 194, 140 Am. St. Rep. 47; 16 Ala. App. 223, 77 So. 61.
Holloway Hill, of Montgomery, for appellee.
There was no error in sustaining demurrers to the plea. 158 Ala. 219, 48 So. 487; 78 Ala. 511, 56 Am. Rep. 52; 75 Ala. 168, 51 Am. Rep. 435; 8 R. C. L. 461; 35 Cyc. 644; 223 N.Y. 63, 119 N.E. 227, 1 A.L.R. 154; 17 C. J. 785; 187 Ala. 25, 65 So. 393; 78 Ala. 243, 56 Am. Rep. 28; 94 Ala. 626, 10 So. 333; 158 Ala. 149, 48 So. 548.
Appellee sues appellant on common counts for $83 for goods, wares, and merchandise sold by the plaintiff to the defendant, to which suit the defendant interposed a special plea, which will appear in the report of the case. This plea discloses that the account here sued on arose from a contract between the parties for the purchase of one ton of high-grade cotton seed meal, sold by plaintiff to the defendant, to be used as fertilizer on the latter's farm, which fact was made known to the plaintiff at the time of the contract; and that the plaintiff breached the contract, in that it delivered to the defendant one ton of cotton seed meal which was of low grade, and of much less value as fertilizer than the high-grade meal which he had contracted to buy, and which plaintiff had contracted to sell; that the defendant did not discover the breach of the contract until it was too late to remedy the same, and that by reason of said breach, and as a proximate consequence thereof, the defendant was damaged, in that he practically lost the crop he planted on the land, whereas, if the fertilizer had been high-grade meal, as contracted for, a much larger and more profitable crop would have been made; and by the plea the defendant seeks to recoup the damages thus suffered against plaintiff's demand, and claims judgment for the excess. Demurrer to this plea was sustained, and, the defendant declining to plead further, judgment was rendered for the plaintiff, and this appeal is prosecuted by defendant to review the ruling of the court on demurrer to said plea. This is the only question presented for consideration.
In Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52, it was held that damages for the loss of a crop were recoverable in cases similar to that set forth in this special plea; and this court is now definitely committed to the proposition that such damages are not speculative. International Agr. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L.R.A. (N.S.) 415; Middleton v. Foshee, 192 Ala. 265, 68 So. 890; International Agr. Corp. v. Abercrombie, 192 Ala. 50, 68 So. 873. The assignment of demurrer that the damages claimed were too uncertain and speculative was therefore not well taken.
Another assignment of demurrer is to the effect that for aught that appears the defendant is responsible for his failure to make a reasonable crop; but the plea alleges that the failure of the crop was by reason and as a proximate consequence of plaintiff's breach of the contract with defendant, and we think this averment sufficiently meets that objection.
Assignments of demurrers 8, 11, and 12 take the point that the plea fails to aver that plaintiff had knowledge of the facts and purposes for which the defendant purchased the cotton seed meal at the time it was purchased, or that it was for any special purpose; and that it fails to aver for the use of what kind of crop the fertilizer was obtained, and notice thereof to the plaintiff. Much stress is laid upon these objections to the plea by counsel for appellee in support of the ruling of the court below. We are of the opinion, however, they were not well made. It is a general rule of law that he who breaks a contract is liable to compensate the other party for all damages occasioned by the breach which might reasonably be expected to flow therefrom under ordinary circumstances or peculiar circumstances of which the contractor is informed at the time of contracting. In Daughtery v. Am. Union Tel. Co., 75 Ala. 168, 51 Am. Rep. 435, this court treated at some length this general rule as announced in the leading case of Hadley v. Baxendale, 9 Exch. 341, stating that in fact that decision declared two rules for the assessment of damages for the breach of contract; the first, where there are no special circumstances in the case to distinguish it from the great mass of contracts of the same kind wherein the damages recoverable are such as naturally and generally result from such breach, according to the usual course of things, and the second rule, where there are special circumstances in the contract and its observance which take it out of the usual course of things. In the cases arising under the second rule, if the special circumstances be unknown and uncommunicated, then they are not the natural result of the breach. If, however, they are communicated, they become an implied element of the contract, and the parties are presumed to contract in reference to such special circumstances.
The averments of this plea are such as to bring it within the second rule that the special circumstances were that the cotton seed meal was purchased, not for resale, but to be used as fertilizer upon the defendant's farm, and that these facts were communicated to the plaintiff at the time of the purchase. The plaintiff was therefore informed, according to this plea, that defendant was purchasing a high-grade cotton seed meal to be used as fertilizer on his farm. These special circumstances being thus communicated became an implied element of the contract, and the parties therefore were presumed to contract in reference to special circumstances. In Bell v. Reynolds, supra, it was said:
"It is consonate with both justice and sound sense, that one should be 'held liable for all those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into consideration.' "
Does the plea therefore sufficiently allege a communication to the plaintiff of these special circumstances? We answer in the affirmative. It has been held that the terms "special purpose" and "notice" used in cases of this character should receive reasonable interpretation with reference to the subject to which they are applied. Notice includes knowledge of and means of knowing the facts. West. Union Tel. Co. v. Sheffield, 71 Tex. 570, 10 S.W. 752, 10 Am. St. Rep. 790. Nor is it required that the party sought to be charged for the breach should have exact knowledge or information in detail. Kelley, etc., Co. v. La Crosse Carriage Co., 120 Wis. 84, 97 N.W. 674, 102 Am. St. Rep. 979; 8 R. C. L. 461. There was no necessity for the plea to aver that plaintiff was informed the fertilizer was to be used for any particular crop, as of corn or cotton, as these were mere matters of detail. Plaintiff was informed that the meal was being purchased to be used as fertilizer upon a farm. Common knowledge, as well as reason and common sense, supplied all the necessary details, and the parties must be held to have contracted in contemplation of these special circumstances. Bell v. Reynolds, supra; Pacific Guano Co. v. Mullen, 66 Ala. 582.
We are of the opinion the plea was not subject to the demurrer interposed. The judgment of the court sustaining the demurrer is therefore reversed, and, the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.