Opinion
6 Div. 708.
December 16, 1926.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
J. D. Acuff and R. A. Cooner, both of Jasper, for appellant.
The contract sued on is valid and binding. McIntyre L. E. Co. v. Jackson L. Co., 165 Ala. 268, 51 So. 767, 138 Am. St. Rep. 66; Pratt Con. Coal Co. v. Short, 191 Ala. 378, 68 So. 63; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763; Jones v. Lanier, 198 Ala. 363, 73 So. 535; Lively v. Robbins, 39 Ala. 461. As to the effect of blanks in a contract, see 13 C. J. 308. The party who is prevented by the other party from performing, may treat the contract as broken and recover whatever damages he may have sustained as if he had performed. 13 C. J. 469; Tutwiler v. Burns, 160 Ala. 386, 49 So. 455; Wagar Co. v. Sullivan Co., 120 Ala. 558, 24 So. 949.
Bankhead Bankhead, of Jasper, for appellee.
The contract is wanting in mutuality, in that the seller was not legally obligated to mine or produce, and defendant is not liable for causing production to be stopped. Lucas E. Moore Stave Co. v. Kennedy, 212 Ala. 193, 101 So. 894; Kenan, McKay Spier v. Home Fertilizer Co., 202 Ala. 29, 79 So. 367; Jones v. Lanier, 198 Ala. 363, 73 So. 535; McIntyre Co. v. Jackson Co., 165 Ala. 268, 51 So. 767, 138 Am. St. Rep. 66; Lucas E. Moore Stave Co. v. Woodley, 213 Ala. 570, 105 So. 878.
Defendant's special plea 8 was not subject to the plaintiff's demurrer thereto. It set up an amendment or modification of the original contract as set forth in the complaint, and a compliance therewith so far as it was binding upon the defendant, that is, payment for all the coal that was delivered, and the modification as set out in said plea rendered the contract unilateral, that is, wanting in mutuality, in that the plaintiff was not thereby bound or obligated to mine any particular quantity of coal or any at all for that matter. The defendant was bound to take the output of the mine, but no duty thereunder rested upon the plaintiff to operate the mine, and the defendant had no right to compel it to do so, or maintain an action for a failure to operate the mine. Therefore the plaintiff could not maintain an action against the defendant for a refusal or failure to take the coal, and could recover for only so much of the coal as the defendant accepted, and which the plea avers was paid for by the defendant. This amended contract falls squarely under the influence of Moore v. Kennedy, 212 Ala. 193, 101 So. 894; Jones v. Lanier, 198 Ala. 363, 73 So. 535. True, it required the plaintiff to deliver the cars of coal as required by the defendant, but that, of course, meant after the coal was mined and ready for delivery, and did not require the plaintiff to operate the mine.
Nor was the amended contract bad as for a failure to express a consideration. The written executory contract was subject to modification or alteration by the subsequent agreement of the parties, if founded upon no other consideration than the mutual consent of the parties. Elliott v. Howison, 146 Ala. 568, 40 So. 1018; Robinson v. Bullock, 66 Ala. 548. None of the cases cited by appellant's counsel are in conflict with this holding or the authorities here cited.
The plaintiff's special replications to the defendant's plea 8 are so manifestly without merit that a discussion of same can serve no good purpose.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.