Opinion
8 Div. 794.
September 15, 1955. Rehearing Denied November 10, 1955.
Appeal from the Circuit Court, Lauderdale County, Robt. M. Hill, J.
Bradshaw, Barnett Haltom, Florence, for appellant.
Where a contract pleaded is not in writing importing a consideration, the complaint must affirmatively allege a consideration supporting the contract. Federal Land Bank of New Orleans v. Mulkey, 228 Ala. 500, 153 So. 775; Globe Rutgers Fire Ins. Co. of New York v. Eureka Sawmill Co., 227 Ala. 667, 151 So. 827; Newton v. Brook, 134 Ala. 269, 32 So. 722; Thompson v. Hudgins, 116 Ala. 93, 22 So. 632. Existence of a mere controversy will not suffice to support a contract based upon the settlement of the controversy, unless based upon some consideration in the shape of something beneficial to one party or detrimental to the other. A claim without legal merit, whether its legal validity is known or not, and absolutely and clearly unsustainable at law or in equity, constitutes no legal consideration for compromise and settlement. Daniel v. Hughes, 196 Ala. 368, 72 So. 23; Russell v. Wright, 98 Ala. 652, 13 So. 594; Ernst Bros. v. Hollis, 86 Ala. 511, 513, 6 So. 85; Thompson v. Hudgins, supra; Crawford v. Engram, 157 Ala. 314, 47 So. 712; Burleson v. Mays, 189 Ala. 107, 111, 66 So. 36. A warehouseman is not liable, in absence of agreement to contrary, for any loss or injury to goods which could not have been avoided by exercise of care a reasonably prudent person would have taken. Appellant was guilty of no negligence in connection with the flood. Code 1940, Tit. 2, § 526; 56 Am.Jur. 384; Oktibbeha County Cotton Warehouse Co. v. J. C. Page Co., 151 Miss. 295, 117 So. 834; Crittenden Co. v. North British Mer. Ins. Co., 5 Cir., 31 F.2d 700. Want of consideration is a special defense and cannot be availed of under the general issue. Hyatt's Supply Co. v. Lyle, 222 Ala. 460, 133 So. 3; American Oak Extract Co. v. Ryan, 112 Ala. 337, 20 So. 644; Sanders v. Williams, 163 Ala. 451, 50 So. 893; Code 1940, Tit. 7, § 225. A landlord has no title in crops. Jordan v. Henderson, 258 Ala. 419, 63 So.2d 379; Townsend v. Bussey, 30 Ala. App. 259, 4 So.2d 199; Crow v. Beck, 208 Ala. 444, 94 So. 580; Williams v. Lay, 184 Ala. 54, 63 So. 466. If rent and advances were unpaid, the only right Ralph Lansdell had was to enforce his landlord's lien by attachment. Code 1940, Tit. 31, § 20; Townsend v. Bussey, supra. Opinion evidence is not admissible concerning matters of which the jury is as competent to judge as a witness. Even expert testimony is inadmissible in matters of common knowledge, or outside expert field. Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881; Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837.
Mitchell Poellnitz, Florence, for appellees.
A compromise of the differences arising out of a contract and a mutual agreement to rescind such contract and to enter into a new one embodying the compromise constitute a sufficient consideration to support the new contract. Russell Barbour v. Lambert, 14 Idaho 284, 94 P. 54, L.R.A. 1915B, 20; Hercules Power Co. v. Harry T. Campbell Sons Co., 156 Md. 346, 144 A. 510, 62 A.L.R. 1497; Lauderdale County Co-op. v. Lansdell, 260 Ala. 452, 71 So.2d 70; 17 C.J.S., Contracts, §§ 87, 105, 376b, 377, pp. 433, 462, 863; Bryan, Keefe Co. v. Howell, 92 Fla. 295, 109 So. 593. Forbearance is a sufficient consideration when it results from a request of defendant, and the claimant believes and has reasonable cause to believe that he has a good claim. Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 61 So.2d 19; 17 C.J.S., Contracts, § 104, p. 461. A warehouseman may be liable where, by special contract, he has undertaken a special duty with reference to the goods and loss resulted from a failure to perform such duty. 67 C.J. 501, § 93; Code 1940, Tit. 2, § 506; Morse v. Imperial Grain Warehouse Co., 40 Cal.App. 574, 181 P. 815; Seals v. Edmondson, 71 Ala. 509; 67 C.J. 559, § 240; Churchill v. Walling, 205 Ala. 509, 88 So. 582; Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33; 8 C.J.S., Bail, § 53, p. 111; 8 C.J.S., Bailments, § 26d, p. 267. In action for breach of contract plaintiffs having separate interests but who sustained joint damage may sue either jointly or separately in respect thereto; and plaintiffs having a joint or common interest must sue jointly for the injury. Poole v. Griffith, 216 Ala. 120, 112 So. 447; Winter-Loeb Grocery Co. v. Boykin, 203 Ala. 187, 82 So. 437; Gafford v. Tittle, 224 Ala. 605, 141 So. 653; Beatty v. McMillan, 226 Ala. 405, 147 So. 180. A plaintiff may maintain an action on the case whenever he shows that he has sustained damage from the tortious act of defendant, for which established forms of law furnish no remedy. City Nat. Bank v. Nelson, 214 Ala. 297, 107 So. 849; Id., 218 Ala. 90, 117 So. 681, 61 A.L.R. 938; 52 C.J.S., Landlord Tenant, § 643. A defendant not aggrieved by misjoinder of parties plaintiff may not successfully object thereto. 67 C.J.S., Parties, § 134, p. 1140; Supreme Court Rule 45, Code 1940, Tit. app.; 39 Am.Jur. 995, § 119; Becker Roofing Co. v. Pike, 230 Ala. 289, 160 So. 692; Poole v. Griffith, supra. Damages for breach of contract should restore the injured party to the condition he would have occupied if the contract had been fully performed. Kennedy v. Hudson, 224 Ala. 17, 138 So. 282; Nunnally Co. v. Bromberg Co., 217 Ala. 180, 115 So. 230; White Swan Laundry v. Blue, 223 Ala. 663, 137 So. 898; 8 C.J.S., Bailments, § 55, p. 364.
Amended Count 1 of the complaint is as follows:
"Plaintiffs claim of defendant the sum of Twelve Hundred Fifty (1250.00) Dollars as damages for that the defendant is now, and was during the month of November, 1947, and in the interim, engaged in the business of a public warehouse, and storing, handling, and caring for cotton for a reward, and on, to-wit, the 5th of November, 1947, the plaintiffs stored with defendant at its warehouse in Florence, Alabama, 26 bales of cotton, all of which the defendant agreed to keep for the plaintiff and to exercise ordinary care and diligence in the care of the same; and plaintiffs paid to defendant the charges required and demanded of them for such services.
"And plaintiffs aver that on to-wit, February 13, 1948, while the said cotton was stored in the warehouse of defendant, the said cotton was materially damaged by water and plaintiffs made demand on defendant for the settlement of its liability because of such damage; and thereafter in settlement and discharge of said claim of plaintiffs, the parties by compromise agreed as follows, to-wit:
"That defendant would dry the cotton of plaintiffs and pay for the irreparably damaged portion of the same and return to plaintiffs the less damaged portion dried and in as good or better condition than said cotton was before the said water damage, and of market value equal or better than before damage.
"Thereafter, defendant did dry the said cotton and did pay plaintiffs for the irreparably damaged portion of the same and did return the plaintiffs the balance of the same; but defendants failed to comply with and did breach the said contract of compromise in this, to-wit:
"That said cotton was re-packed and not in as good condition as it was before the said water damage and had a less market value than it had prior to said water damage; all to plaintiffs' injury and damage in the sum aforesaid.
"For which plaintiffs sue."
This is an appeal by defendant from a judgment rendered in favor of plaintiffs for a breach of contract. See opinion on former appeal — 260 Ala. 452, 71 So.2d 70.
After the cause was remanded, it was tried at law with a jury resulting as indicated above. It was tried on two counts. They are both of the same import. Count 1 as amended will be set out in the statement of facts. It will be observed that it alleges that plaintiffs stored cotton in defendant's warehouse. The cotton was materially damaged by water, and plaintiffs made demand upon defendant for settlement of its liability to plaintiffs because of such damage, and, in settlement and discharge of such claim and by way of compromise, the defendant agreed that "it would dry the cotton of plaintiffs and pay for the irreparably damaged portion of the same and return to plaintiffs the less damaged portion dried and in a good or better condition than said cotton was before said water damage, and of market value equal or better than before damage".
The question which seems to be most argued by counsel on appeal is whether there was a sufficient consideration alleged for the contract, or shown by the evidence. There was first a demurrer to the complaint claiming that the complaint showing a verbal contract, or one not alleged to be in writing, must show the existence of a sufficient consideration; and that it is insufficient in that respect. The court overruled the demurrer. The defendant then filed pleas. Plea 1 was the general issue and plea 2 was that there was no consideration for the contract alleged in the complant. Plaintiffs demurred to these and other pleas. The demurrer to pleas 1 and 2 was overruled, and sustained as to the other pleas. After the evidence was taken, at the written request of plaintiffs, the court charged the jury that if they believe the evidence they cannot return a verdict for defendant based on its plea No. 2. So that the question is properly presented and very earnestly and ably argued. This question was also indirectly involved on the former appeal and there argued; but was there considered only on the question of whether the issues were available at law or whether there was equity involved. We thought there was a sufficient showing for a consideration, and so stated on that appeal. That view is challenged and the question again argued on this appeal.
The Pleading.
The theory of appellant's argument is largely based on what was said in respect to the question presented in Daniel v. Hughes, 196 Ala. 368, 72 So. 23, 24. In that case it was shown to be settled that the existence of a mere controversy will not suffice to support an agreement to settle. And that " ' "The surrender of a mere assertion of claim, or the withdrawal of a threat to sue, when the claim is without legal merit, whether its legal validity is known or not, will not uphold a release, or agreement of compromise." [And] "When a claim is absolutely and clearly unsustainable, at law or in equity, its compromise constitutes no sufficient legal consideration." ' " The complaint there, to which the demurrer was sustained, was patently insufficient in that respect.
The same thought, variously expressed, is given effect in many of our cases, as that there must be a bona fide claim based on colorable right, such as conflicting or indeterminate testimony from which inferences are to be drawn, Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662; or that the result of a proceeding on the claim is doubtful, Russell v. Wright, 98 Ala. 652, 13 So. 594; Ernst Bros. v. Hollis, 86 Ala. 511, 6 So. 85; or there is some reasonable ground for controversy. Burleson v. Mays, 189 Ala. 107, 111, 66 So. 36.
The allegations of the complaint show the existence of a material matter in dispute, and that it was settled by the agreement alleged to have been made by defendant. That sufficiently pleads the existence of a consideration. Ex parte Southern Cotton Oil Co., supra (2). That was put in issue by the plea of the general issue and by special plea 2. If the claim for damages set up in the complaint was fictitious, without any basis, not in good faith, not even of a doubtful nature, and not so appearing on its face, the burden was upon defendant in that respect. Hartford Fire Ins. Co. v. Clark, 258 Ala. 141 (3), 61 So.2d 19.
General Charge.
The court gave the general charge for plaintiffs on the issue as to a consideration for the alleged contract.
It is undisputed that plaintiffs had twenty-six bales of cotton in defendant's warehouse; that on February 13, 1948, while said cotton was thus stored, it was materially damaged by flood waters flowing into the warehouse, caused by an overflow of the river. If in fact the contract as alleged in the complaint was made, which is disputed, it was in settlement of that damage. Was that a claim made in good faith and of a doubtful sort? The law applicable to a warehouseman's duty is set forth in section 526, Title 2, Code, which requires of him an exercise of reasonable and ordinary care to protect the property stored from damage (as from the elements), and makes him liable for any loss or injury to the goods which could have been avoided by the exercise of such care. This is no more than the duty which obtains without the statute. BetheaStarr Packing Shipping Co. v. Mayben, 192 Ala. 542, 68 So. 814; Seals v. Edmondson, 71 Ala. 509; 56 Am.Jur. 384, section 136.
This damage to the bailed property having been caused by the violence of nature, there is no presumption of negligence on the part of the defendant-bailee, and on the trial of a suit against him the burden to produce some evidence of his negligence would be upon the plaintiffs. Seals v. Edmondson, supra; Higman v. Camody, 112 Ala. 267, 274, 20 So. 480; Aircraft Sales Service, Inc., v. Bramlett, 254 Ala. 588(7), 49 So.2d 144. But that burden is met if the evidence which proves the damage, though it be the violence of nature, tends to show negligence on the part of defendant. Aircraft Sales and Service, Inc., v. Bramlett, supra.
The negligence of warehousemen is usually a question for the jury, considering the manner in which the cotton is stored and protected, in the light of its location and surroundings and the effort made to protect it after and even before the danger becomes imminent. Whittington v. Cameron Compress Co., Tex.Civ.App., 268 S.W. 216.
The cases cited in this connection by appellant of Oktibbeha County Cotton Warehouse Co. v. J. C. Page Co., 151 Miss. 295, 117 So. 834, and Crittenden Co. v. North-British Merc. Ins. Co., 5 Cir., 31 F.2d 700, are both suits against the warehouseman, and the question was whether the evidence was sufficient to sustain liability. It was not a question of whether the facts disclosed justified a voluntary settlement by defendant without litigation.
The real controversy here is not the liability of defendant for the damage to the cotton, but whether there was a claim which justified its discharge by the contract, if there was such a contract. Defendant could see that his negligence in respect to the damage would be an issue in a suit on that claim, and that it would probably be left to the jury to determine whether he was negligent in respect to danger from the flood, and, rather than submit the issue to a jury, he preferred to make settlement for the damage — assuming that he made the contract as alleged. We see no reason why this could not be legally done as here claimed by plaintiffs. Those factual circumstances were without dispute, and the court had a right to give an affirmative instruction, on written request, as to their effect upon the issue of consideration. If plaintiffs did not have a bona fide claim of a doubtful sort for damage to their cotton, there is nothing in the record to support the contention.
Joint Action.
Appellant also insists that one of the plaintiffs Ralph Lansdell did not have such interest in the cotton as would support his joinder as a plaintiff in this action. According to appellant's showing Ralph Lansdell only had a landlord's lien for the value of one-fourth of the cotton grown on a certain forty, and plaintiff M. L. Lansdell was his tenant with the legal title. But, as we explained on the former appeal, this action is not for damages for the destruction of plaintiffs' interest in the cotton. In such a suit the nature of that interest would control the nature of his claim, and whether the suit would be in case, trover, or trespass, and the right to join them as plaintiffs. Defendant could voluntarily accept both claims as valid and settle them by making a joint promise satisfactory to them both. The promise by defendant may have been with or for both plaintiffs having an undivided interest without regard to the respective ratio of that interest in the cotton or the nature of their respective rights. The suit is properly on the contract, alleged to be joint, where both parties have a community of interest. Winter-Loeb Grocery Co. v. Boykin, 203 Ala. 187, 82 So. 437.
Admission of Evidence.
It is insisted that the court erred in admitting evidence of the value of the cotton after it was returned to plaintiffs, when they offered to sell it and could not because it was not marketable. That was before July 31, 1948. The legality of such evidence extends to the claim of damages in the complaint. There is here only a claim of general damages. On such a claim the measure is the difference between the value of the cotton after it had been processed and returned to plaintiffs, in its condition at that time, and what its value would have been had it been in as good condition as required by the contract. But plaintiffs had borrowed from the Commodity Credit Corporation and deposited the receipts as security with the agreement that plaintiffs could sell the cotton at any time before July 31, 1948, if they could get more than was owing to the Commodity Credit Corporation. The purpose was to enable plaintiffs to hold the cotton for a better price. This was known to defendant, as shown by the evidence, since the defendant negotiated and conducted the transaction with the Commodity Credit Corporation.
The evidence introduced showed the basis of a claim for special damages available when so alleged and claimed in the complaint. But it must also be alleged in the complaint that defendant had notice of those special facts which are necessary to support the special damages. Bell v. Reynolds, 78 Ala. 511; Dominey v. Johnson-Brown Co., 219 Ala. 666(4), 123 So. 52. There were no such allegations in the complaint, but objection was not made on that ground nor is it so argued here.
We think plaintiffs had the right to take advantage of their contract with the Commodity Credit Corporation, known to defendant, and when the cotton advanced to a satisfactory price whereby they could realize something for their equity, they had a right to sell the cotton before July 31, 1948, and fix that as the date on which to compute values. And having that right they could also try to sell the cotton in the open market, acting as expediently and fairly as they could and the result would be evidence of the market value and of the unmarketable condition of the cotton. See the cases of Swedenburg v. Copeland, Ala., 82 So.2d 227; McFadden v. Henderson, 128 Ala. 221 (10), 29 So. 640; Cortner v. Anderson, Clayton Co., 225 Ala. 575, 577(3), 144 So. 443.
Ante, p. 241.
Plaintiffs' counsel in their argument before the jury made a computation on a blackboard showing the amount of plaintiffs' damages after deducting the debt to the Commodity Credit Corporation. The jury accepted that computation and based their verdict on it. There was no impropriety in that procedure.
It results from the foregoing that the judgment of circuit court should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur.