FOREMAN & CO., Inc., v. BLEWETT

173 So. 396 FOREMAN & CO., Inc., v. BLEWETT. 1 Div. 272. Court of Appeals of Alabama. Jan. 12, 1937. Rehearing Denied Feb. 2, 1937. M. F. Dozier and B. F. McMillan, Jr., both of Mobile, for appellant. Gordon, Edington & Leigh and Leo H. Pou, all of Mobile, for appellee. [MAJORITY — SAMFORD, Judge.] SAMFORD, Judge. The pleadings necessary for a consideration of this appeal are contained -in count 4 of the complaint, as amended, and defendant’s plea 3, which sets out the entire alleged contract between the parties. The entire negotiation for the sale and purchase of the stock described in the complaint was carried on by telegrams, evidencing the necessity for prompt action, the first being dated December 1, 1932, and the last December 2, 1932. The first telegram was an offer to purchase 500 Nu-Grape stock “at once.” The second telegram was from plaintiff to defendant, accepting the offer, which included prompt delivery. The third was a telegram from the Citronelle State Bank, guaranteeing the payment of the purchase price. The fourth telegram was from plaintiff to defendant, undertaking to modify the time of delivery, and the fifth telegram was from defendant to plaintiff, canceling the order by reason of the delay .in delivery. All of which evidences the fact that time was of the essence of the contract and that, in view of telegram No. 4, the defendant had a right to cancel the order. Either that, or it is very apparent that the minds of the parties had never met upon the necessary terms of. the contract here undertaken to be enforced. We see no necessity for an extended discussion or the citation of authority. The pleadings speak for themselves, and that is the view taken by the trial court in its rulings bn the various pleadings seeking an issue. The judgment is affirmed. Affirmed.