author: BLOODWORTH, Justice. JONES, Justice FAULKNER, Justice

text:
    HUBBARD BROS. CONSTRUCTION COMPANY, INC., a corporation v. C. F. HALSTEAD CONTRACTOR, INC., a corporation.
    SC 908.
    Supreme Court of Alabama.
    Sept. 25, 1975.
    lio hearing Denied Nov. 6, 1975.

      Beavers, May & DeBuys, Birmingham, for appellant.
    Jack Crenshaw, Montgomery, for appel-lee.
   BLOODWORTH, Justice.

The sole question presented by this appeal is whether the trial judge erred in granting defendant’s motion for new trial. The motion contains the ground that the verdict is contrary to the great preponderance of the evidence. In ruling, the judge gave no reason for his decision. The evidence was in conflict. We say that he did not err and affirm.

The facts upon which this appeal rests are stated in the dissenting opinion of Mr. Justice Jones and need not be repeated here.

From the second Monday in May, 1820, when the Supreme Court of Alabama first met at the capítol in Cahawba, to this present day perhaps no principles of Alabama law have been more uniformly settled or more frequently cited than those pronounced in Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891).

In that leading case, Justice Clopton wrote for the Court, inter alia :

“ * * * and lay down as rules for the guidance of this court, that the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. And decisions granting new trials will not be reversed, unless the evidence plainly and palpably supports the verdict. * * * ”

The reason for the rule is clearly stated.

“[The trial judge] has heard and seen the witnesses testify, observed their tone and demeanor, and noticed their candor, or convenient failure of memory, to avoid impeachment, or for other improper purpose. The appellate court, possessing none of these aids and advantages, and receiving the evidence on paper ■only, is less qualified to determine what evidence is unworthy of belief, what weight should be given to that which has been rejected by the jury, and may give undue weight to the testimony of some of the witnesses. * * * ” [Our emphasis.]

Following the decision in Cobb v. Malone, this Court has laid down the rules respecting appellate review of rulings on motions for new trial. These rules have been followed in countless hundreds of our cases. Every present member of this Court has concurred in one or more. We would take this opportunity to reaffirm Cobb v. Malone and its progeny and to summarize those rules applicable to this present case.

1. Granting or denying a new trial motion is a matter resting largely in the discretion of the trial judge and exercising it carries a presumption of correctness. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973); App. & Error @=>933(1), Vol. 2A, Alabama Digest.

2. When the trial court grants a new trial motion, without specifying the grounds therefor, the ruling must be sustained on appeal if any good ground is presented by the motion. Johnson v. Hodge, supra; App. & Error @=854(6), supra.

3. When the trial court grants a new trial, without specifying the grounds therefor, and one of the grounds is that the verdict is contrary to the evidence, the appellate court presumes that it was because the trial court concluded the verdict was contrary to the great preponderance of the evidence or the verdict was unjust in the light of the evidence. Jones v. Strange, 289 Ala. 76, 265 So.2d 860 (1972); Kennedy v. General Transport Company, Inc., 293 Ala. 455, 304 So.2d 896 (1975); App. & Error @=933(1) (4), supra.

4. In such circumstances as 3, the appellate court will not reverse the order granting a new trial unless it appears that the great weight of the evidence plainly and palpably shows the trial court was in error. Jones v. Strange, supra; App. & Error @=1015(3), supra.

5. In such circumstances as 3, and where the evidence is in conflict and when, upon a review thereof, the appellate court cannot say that the great weight of the evidence plainly and palpably supports the jury’s verdict or it is not convinced that the evidence plainly and palpably shows the trial court to be in error, then the order granting a new trial should not be disturbed. ConAGRA, Inc. v. Masterson, 290 Ala. 273, 276 So.2d 134 (1973); Kennedy v. General Transport Company, Inc., supra; New Trial @=71, 72(9), Vol. 15A, Alabama Digest.

Almost sixty years ago, this Court settled the question as to the legal effect of the last sentence of Act No. 656, Acts 1915, p. 722 [now codified at Tit. 7, § 764, Code of Alabama 1940], that no presumption in favor of the correctness of the trial court’s ruling in granting or refusing a new trial shall be indulged by the appellate court.

In Hackett v. Cash, 196 Ala. 403, 72 So. 52 (1916), this Court held, in an opinion authored by Chief Justice Anderson, that a similar provision of Act No. 722, Acts 1915, p. 824, was not intended to override a long line of decisions as to what weight should be accorded the trial judge’s conclusion upon the facts. If it was so intended, it would constitute an “invasion of the judiciary,” the Court held.

Just a year later in Hatfield v. Riley, 199 Ala. 388, 74 So. 380 (1917), this Court was faced squarely with the question as to the effect of this rule of presumption in favor of the trial court’s ruling on motion for new trial. Justice Gardner wrote for the Court that, because the trial judge (in a jury trial) had the witnesses before him and had the advantage of observing their manner and demeanor on the stand, the presumption is in favor of his ruling on motion for new trial. He observed: “This rule has not been changed by recent legislative enactment. Acts 1915, p. 722.” He then added: “The reasoning in the cases of Hackett v. Cash, 196 Ala. 403, 72 So. 52, and Finney v. Studebaker, 196 Ala. 422, 72 So. 54, applies to the above cited act.” These cases clearly demonstrate that the legislative addition to the Code by the enactment of Act 656, Acts 1915, p. 722, has not been overlooked by subsequent courts applying Cobb’s rule.

The case of Castleberry v. Morgan, 28 Ala.App. 70, 178 So. 823 (1938), cited in Justice Jones’ dissent, insofar as it may conflict with these rules has been expressly disapproved by this Court. See Adams v. Lanier, 283 Ala. 321, 216 So.2d 713 (1968) (Per Coleman, J.).

It would seem almost aphorismic to add that, in exercising the power to set aside verdicts, trial courts

“ * * * should be careful not to infringe the right of trial by jury, and should bear in mind, that it is their exclusive province to determine the credibility of witnesses, to weigh the testimony, and find the facts.”

In cases such as the instant case, where the evidence was in conflict and the trial judge granted a new trial without specifying the grounds but one of the grounds asserted by the movant was that the verdict is contrary to the great preponderance of the evidence, it is presumed that it was granted for that reason. The order should be affirmed because, upon a review of the evidence, it cannot be said that the great weight of the evidence plainly and palpably supports the jury’s verdict. Authorities, supra.

Affirmed.

MERRILL, MADDOX, ALMON, SHORES and EMBRY, JJ., concur.

HEFLIN, C. J., and FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting).

I respectfully dissent.

The scope of appellate review of an order granting a motion for a new trial following a jury verdict is in dire need of modification and clarification. This appeal presents a classical opportunity for such effort. Any re-examination of the guidelines for the exercise of the discretionary power of the trial court to set aside a jury verdict must begin with the premise that the right of trial by jury is constitutionally mandated. Substantive due process of law is violated when this fundamental right is infringed.

A full statement of the case, as well as the factual context in which the issue presented arises, is necessary as a basis for my reasons for differing with the majority.

Hubbard Brothers Construction Company, Inc., (plaintiff-appellant) claims damages against C. F. Halstead Contractor, Inc., (defendant-appellee) for work and labor done on account and for breach of written contract. Halstead counterclaims for damages incurred in remedying the alleged defects in the work performed by Hubbard.

The jury returned a verdict in favor of Hubbard and against Halstead in the sum of $25,755.90. The maximum recovery allowable under the evidence, including interest, is $24,216.15. Thus, the award exceeds the maximum allowable recovery by $1,539.75. Hubbard attributes this excess to an inadvertent mistake by the jury in computing the interest due on the principal.

Hubbard now appeals, alleging that the trial Judge erroneously granted Halstead’s motion for a new trial.

Hubbard is a framing contractor and Halstead is a general contractor. Their contract called for Hubbard to furnish all of the labor and equipment necessary to perform the carpentry work on a 320-unit apartment complex known as the Cedar-brook South Apartments. Under the contract, Halstead possessed the right to terminate Hubbard’s employment should he fail to prosecute this work with diligence, efficiency, and promptness.

The controversy centers upon the end product of Hubbard’s workmanship on the apartments, which included, among other things, crooked and leaning walls, floors, roofs and cabinets. Hubbard, although he admits that such was the end result of his carpentry, attributes the defects to his being forced to build on foundations which were incorrectly poured and thus resulted in his poor work product. Hubbard also alleges that Halstead was informed of the defective construction of the foundation, but that Halstead directed him to do the best he could under the circumstances.

Halstead’s witnesses testified that it was quite common for foundations to be a “little off”, but that the foundations in question were off to such a small degree that any skilled carpenter could have corrected the problem with a minimum of effort.

On the whole, both parties presented considerable testimony and other evidence tending to support their respective position. At the close of the trial', the jury, as the trier of the facts, was faced with a situation in which the posture of the evidence made a verdict for either side equally possible. The sole issue presented for our review is whether the trial Court abused its discretion in granting Halstead’s motion for a new trial.

I would hold such a ruling was an abuse of discretion and reverse and remand this cause with instructions to enter an order overruling the motion for a new trial on the condition that Hubbard file within 30 days a remittitur equal to the sum in excess of the maximum amount of recovery warranted by the evidence, otherwise to grant a new trial.

Halstead’s motion for a new trial contained six numbered grounds which claimed the two following substantive errors under Tit. 7, § 276, Code :

1. That the verdict was contrary to the great preponderance of the evidence.
2. That the amount of damages awarded by the jury was excessive.

The power of a trial judge to set aside an improper verdict and enter an order for a new trial is inherent in courts of common law jurisdiction. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1891). In principle, this power provides a safety valve in the judicial system by allowing the court to avoid any potential injustice which may result from a jury’s bias, prejudice, passion, sympathy, or mistaken view of the merits of a case. Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963).

It does not, however, grant to the trial judge an unbridled discretion to veto the verdict of a jury and substitute his own opinion on the weight of the evidence or the excessiveness of the damages. Johnson v. Howard, 279 Ala. 16, 181 So.2d 85 (1965); W. M. Templeton & Son v. David, 233 Ala. 616, 173 So. 231 (1937); Winter & Loeb v. Judkins, 106 Ala. 259, 17 So. 627 (1895); Cobb v. Malone & Collins, supra. To temper the trial judge’s potential to disrupt the well considered judgments of impartial jurors, guidelines of restraint have been judicially developed and interposed between the sanctity of the verdict and the power to grant new trials. These guidelines are to be used not only by the trial judge in gauging his own authority to grant new trials, but also by the appellate court in reviewing the record for possible abuses of discretion.

In cases such as the instant one, where the trial judge gives no reasons for his order granting the motion for a new trial, the appellate court must affirm if any of the grounds set forth in the motion is sufficient. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973); Shepherd v. Southern Railway Company, 288 Ala. 50, 256 So.2d 883 (1970); City of Tuscaloosa v. Townsend, 274 Ala. 268, 147 So.2d 824 (1962).

Also, when a trial court grants a motion for a new trial without assigning a specific ground, this Court indulges the presumption that it was because the trial court concluded that the verdict was unjust in light of the evidence. Jones v. Strange, 289 Ala. 76, 265 So.2d 860 (1972); Boyd v. Shaw, 287 Ala. 26, 247 So.2d 116 (1971). We will, therefore, first address the issue of whether the ground that “the verdict was not sustained by the great preponderance of the evidence” is sufficient to grant the appellee’s motion for new trial.

The development of Alabama case law on the review of new trial orders generally, and of new trial orders based on the ground that the verdict was contrary to the evidence especially, began with the 1891 case of Cobb v. Malone & Collins, supra. Prior to 1891, decisions granting or refusing new trials were not reviewable. Barr v. White, 2 Port. 342 (1835) and Spence v. Tuggle, 10 Ala. 538 (1846). At that time, a statute was passed (Acts 1890-91, 779 now encompassed in Tit. 7, § 764) which abrogated this rule and provided that decisions on new trial motions were reviewable by appellate courts.

Cobb was the first case to construe this statute and it has been relied on by many subsequent courts facing the issue of the scope of review of new trial orders. I believe, however, that the authority of Cobb is not universally applicable to every new trial situation and that some rethinking of its doctrines, as subsequently interpreted and applied, is in order.

Initially, it is important to note that Cobb was an appeal from a refusal to grant a new trial and the most carefully drafted portions of the opinion deal with that issue rather than the review of an order granting a new trial. On the limits of the trial court’s discretion, Justice Clopton, for the Court, first explains that the purpose behind the power to grant new trials is “to prevent irreparable injustice in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice, on the part of the juries . . .”

He then admonishes the trial judge that “in exercising the power, the court should be careful not to infringe the right of trial by jury, and should bear in mind, that it is their exclusive province to determine the credibility of witnesses, to weigh the testimony, and find the facts ... no ground of new trial is more carefully scru-tined or more rigidly limited, than that the verdict is against the evidence.”

After this aspirational introduction, Justice Clopton explicitly states that “when there is evidence on both sides, or some evidence to support the verdict, it should not be set aside, because it may not correspond with the opinion of the court, as to the weight of the testimony, or because it is against the mere preponderance of the evidence.” This is a sound instruction, which is necessary to prevent the trial judge’s unreasonable infringement upon the right to jury trial.

In the years since these statements of Justice Clopton, two rules have evolved to guide trial judges in granting motions for new trials. The first rule is axiomatic. If there is no evidence to support the verdict returned, a new trial must be granted because the case should not have gone to the jury initially. On the power of the trial judge to direct a verdict when there is no evidence tending to establish a party’s case, see: Stonewall Insurance Company v. Lowe, 291 Ala. 548, 284 So.2d 254 (1973); Tuskegee Auto Parts v. Dixie Highway Express, Inc., 276 Ala. 1, 158 So.2d 645 (1963); Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674 (1932).

The second rule involves the discretion of the judge in that narrow area of cases, where, although there was some evidence to support the verdict, the totality of the case indicates that the verdict returned was so greatly opposed to the weight of the evidence as to cause irreparable injustice. Water Works and Sanitary Sewer Board of the City of Montgomery v. Norman, 282 Ala. 41, 208 So.2d 788 (1968); Castleberry v. Morgan, 28 Ala.App. 70, 178 So. 823 (1938); Atlantic Coast Line R. Co. v. Bur kett, 207 Ala. 344, 92 So. 456 (1922). Both are good rules and worthy of reaffirmation.

The rule set forth in Cobb concerning appellate review of decisions refusing to grant new trials is also sound: “When the presiding judge refuses to grant a new trial, the presumption in favor of the correctness of the verdict is thereby strengthened.” Such a rule is the logical mandate of the policy to sustain jury verdicts unless they would result in irreparable injustice. Since the jury verdict alone is to be given such high credence, it follows that the concurrence of a presiding judge, who also had an opportunity to observe the demean- or of witnesses and examine evidence, must enhance the presumption that the verdict is correct.

The issue of the scope of review of orders granting a new trial was not before the Cobb Court and its summary treatment of that problem was mere dictum. The Court announced that “decisions granting new trials will not be reversed unless the evidence plainly and palpably supports the verdict.” In retrospect, this language was unfortunate because it has been misinterpreted to mean that the verdict must be greatly, or even overwhelmingly, supported by the evidence. A re-examination of the Cobb language immediately preceding this statement of the rule reveals that the Court expressly analogized the situation at hand to the prevailing rule in a non-jury trial. The common law rule for review of ore tenus trials was “not to reverse the finding, unless it is so manifestly against the evidence, that a judge at nisi prius would set aside the verdict of a jury, rendered on the same testimony.” Nooe’s Executor v. Garner’s Adm’r., 70 Ala. 443 (1881).

This is a reasonable rule to apply to the ore tenus trial situation because when a judge sits without a jury, then, he, like a jury, is the trier of fact. It is his opinion on the credibility of witnesses and comparative weight of evidence that determines the outcome of the litigation. The law, in such cases, has entrusted the trial judge with two distinct functions. First, he is to use his common knowledge of human events and his sensory perceptions of evidence to détermine, to the best of his ability, the true facts of the case. Then, he is to use the skills and learning of his profession to apply those facts to the law and thereby obtain a legal conclusion which is the judgment he renders.

The case at hand, however, presents quite different considerations. Here, the trial Judge has overturned the verdict of the ultimate trier of fact — the jury. His decision must be evaluated, not as the decision of an alternate trier of fact, which he is not, but rather as the decision of a presiding judge who is legally vested with carefully circumscribed discretion.

While case law application and interpretation has rendered Cobb’s ore tenus analogy unfortunate, I am convinced from the full context of the opinion, that Justice Clopton did not intend to formulate a double standard for review of new trial orders. The absolutism of the presumption of correctness of the trial court’s ruling whether to grant or deny a motion for a new trial is philosophically inconsistent with the sanctity of jury verdicts. On the one hand, the sanctity of the jury verdict is enhanced by the presumption favoring the trial court’s ruling in denying a motion for a new trial. But, where the presumption of correctness is so absolute as to render the power of review impotent, the trial court’s order granting a motion for a new trial effectively transfers this sanctity from the jury verdict to the trial judge.

The words “plainly and palpably” in the phrase “unless the evidence plainly and palpably supports the verdict” are the root of the problem. These words have been perverted into a quantitative test for the weighing of evidence. Taken for their literal meaning and, in the full context of the Cobb opinion, they mean just what Webster’s dictionary says they mean, “easily perceivable to the mind”. By a mere substitution of the literal definition of the words “plainly and palpably”, the rule enunciated in Cobb may be otherwise stated : An order granting a motiori for a new trial will be reversed for abuse of discretion where on review it is easily perceivable to the mind from the record that the jury verdict is supported by the evidence.

The legislative amendment of the statute interpreted by the Cobb Court — Acts of Alabama, 1915, p. 722, Tit. 7, § 764, Code —deserves comment. This amendment reads, “And no presumption in favor of the correctness of the judgment of the court appealed from shall be indulged by the appellate court.” By increasing the evidential burden of sustaining a jury verdict when a motion for a new trial is granted, the Cobb rule, as interpreted by subsequent cases, does exactly what the legislature explicitly stated shall not be done — it indulges a “presumption in favor of the cor-' rectness of the judgment of the court appealed from.”

It was my initial impression that the exercise by the Court of this legislative grant of power of appellate review of new trial orders should not be on a pick and choose basis, resulting in the abrogation of the conditions and restrictions implicit in the grant of such power. On further deliberation, however, I am convinced that this initial impression was erroneous. A grant of power of appellate review was an exclusive legislative prerogative. To exceed this prerogative and prescribe the scope of review is a violation of the separation of powers doctrine, and I am convinced that there is nothing inconsistent in the Court’s acceptance and exercise of this grant of authority of appellate review of new trial orders on the one hand and the rejection of the legislative conditions and restrictions respecting that review on the other.

Having said this, however, I believe the exercise of the judicial prerogative to prescribe the scope of review is clearly compatible (in its goal if not in its means) with the policy expressed by the legislative admonition of no presumption in favor of the correctness of the trial court. Before proceeding to a discussion of what I believe is a proper expression of this judicial prerogative, I would pause to emphasize that whatever degree of compatibility may exist between my concept of this scope of review and that which is legislatively expressed by the amendment referred to above is purely coincidental and is neither necessitated nor compelled by such legislative expression. It was the evident concern of the legislature that the unchecked power to grant new trials threatened to disrupt the jury system. This concern, implicitly contained in the original grant of the power of review and explicitly set out by the amendment, leads me in the same general direction, though I would seek the end result through somewhat different means.

We start, then, with the proposition that, although the legislative attempt to prescribe the ground rules exceeded its prerogative, the judiciary in the rightful exercise of its prerogative as to the scope of review should aim for the same constitutionally mandated goal — preserving the right of trial by jury.

This does not mean that the “no presumption” rule is necessary or proper to accomplish this result. Literally interpreted, the legislative proscription would have affected a de novo review, stripping the trial court of all discretion. I believe the correct rule lies somewhere between these two extremes. The rule long adhered to by this Court, and now reaffirmed by this opinion, in effect renders futile all efforts to review an order granting a new trial where there is any evidence to support a verdict contrary to that rendered by the jury. Indeed, my research fails to disclose any such reversal in the Alabama Reports.

On the other hand, the legislative “de novo appeal” asserts the other extreme by proscribing any “presumption of correctness.” It seems to me that the extremities of each position decry its own incorrectness. I submit there is a middle ground, fully cognizant of the ultimate legislative intent and judicially protective of constitutional guarantees.

The correct rule, it seems to me, would recognize that motions for a new trial are generally addressed to the sound judicial discretion of the judge who presided over the trial; and, concomitant with this discretion, an order granting a new trial on a sufficiency or weight of the evidence ground would be favored with a presumption of correctness. But, consistent with the principle of judicial discretion generally, its exercise is subject to abuse, and its abuse is reversible upon review.

The guidelines for the exercise of this discretionary power to grant new trials are neither difficult nor novel in Alabama. The correct rule was eloquently articulated by Judge Samford in Castleberry v. Morgan, supra:

“when the trial judge sets aside the verdict, upon motion on the ground that it is contrary to the evidence, it places the judgment of one man, who is not charged with the duty of fact finding, against the judgment of twelve men, equally honest, equally obligated, whose duty it is to find the facts as to a particular transaction; and when the trial judge does exercise the power to set aside the verdict of a jury, it must appear, from the evidence, that the verdict was not only against the weight of the evidence, but so much so as at first blush, to shock our sense of justice and right.”

There is an implicit thread running throughout the majority opinion to the effect that logic requires the same presumption of correctness with respect to the trial court’s granting or denying a motion for a new trial on the weight of the evidence ground. I can only observe that the immediacy of logic is transcended by the higher constitutional admonition against infringement of the right to trial by jury. After all, logic, like beauty, is so often in the eyes of the beholder.

I would reverse and remand on the condition of a remittitur to comport to the evidence on the issue of damages.

HEFLIN, C. J., and FAULKNER, J., concur.

FAULKNER, Justice

(dissenting).

I concur in the dissent of Mr. Justice Jones. I write this only for the purpose of asking a question, to wit, “Will the Judge who knows the meaning of the words “plainly and palpably” please stand up?” The Third New International Dictionary defines the adverb “palpably” as capable of being palpable. “Palpable” is defined as capable of being touched or felt, and perceptible to the sense of touch. “Palp” comes from the Latin “palpare,” meaning to stroke or to caress.

I can understand “plainly.” This word is used a “right smart” by folks who grew up in rural areas of the South. “Plainly” means distinctly, or clearly. So, when the words “plainly and palpably” are used to describe the “weight of the evidence,” does that mean the evidence is “clearly touching” or “distinctly caressing ?”

The words “plainly and palpably” are about as pleasing to me as my having a good case of prickly heat. Surely, more descriptive, and meaningful, words can be found to say how much evidence is necessary to support a jury verdict.

At this point in time, there is really no sound reason for having the Cobb v. Malone rule. If the trial judge who grants or denies the motion for new trial has the courage to state his reason or reasons for doing so, we will not have to resort to this charade.

      . Minor, 1.


source: Caselaw Access Project

author: PER CURIAM. HEFLIN, Chief Justice JONES, Justice

license: Public Domain

text:
    Gene HARGRAVE v. DAVIS-HUNT COTTON COMPANY, a corp.
    SC 1314.
    Supreme Court of Alabama.
    Sept. 25, 1975.
    Patton, Latham & Legge, Athens, for appellant.
    William E. Shinn, Jr., Decatur, for ap-pellee.
   PER CURIAM.

This appeal involves a “cotton output” contract between the Davis-Hunt Cotton Company, Inc. (appellee) and Gene Har-grave (appellant) wherein Davis-Hunt claims $52,810.50 damages for breach of contract.

Under the contract, Hargrave agreed to sell Davis-Hunt all of the cotton he produced during 1973, and ginned before December 16, 1973, at a price of 30 cents per pound. Hargrave produced a total of 721 bales of cotton during the 1973 season, of which 212 bales, weighing 105,621 pounds, were not delivered to Davis-Hunt.

The jury returned a verdict in favor of Davis-Hunt in the amount of $9,000 and the trial court, on Davis-Hunt’s motion, granted a new trial. The principal thrust of Davis-Hunt’s motion, which contained 23 numbered grounds, was that the verdict was contrary to the evidence or contrary to the weight of the evidence.

The order of the trial court granting the motion states in pertinent part:

“As the court views the evidence in this case the jury might have found that the plaintiff was not entitled to recover; but, finding that the plaintiff was entitled to recover, the court is of the opinion that the evidence does not support the verdict as to the damages. The amount of damages set appears to have been a result of error or compromise.”

The issue presented by this appeal is whether the trial court committed reversible error in granting Davis-Hunt’s motion for new trial upon the grounds stated or upon any other good grounds.

We hold that the trial court was not in error and, accordingly, we affirm its decision.

Briefly summarized, the facts are as follows: The duration of the contract was from April, 1973, to December IS, 1973. During this period the price of cotton rose dramatically from 32 cents per pound to more than 80 cents per pound. It appears that under the normal trade practice, cotton is taken to be ginned as soon as it is picked, which usually takes a day or two at the most. Thus, the evidence introduced by both sides centered along the lines of whether Hargrave had valid excuses for failing to get his cotton ginned before the December IS deadline or whether he purposefully delayed such ginning in order to render the cotton unacceptable to the contract, thereby freeing it for sale to other cotton brokers at a higher price.

In 1973, Hargrave farmed the Hill place and the McCrary place, the arrangement being that he would pay the owner of each farm 14 of the cotton he produced during that year. The record of the local ginning facility indicated that the cotton from the Hill place, which was delivered to Davis-Hunt by Hargrave pursuant to the contract, was ginned on November 18, 1973. The cotton given to McCrary for his share was last ginned on November 24, while the cotton registered in Hargrave’s name, produced on the McCrary place, was ginned as follows: on December 1, three bales; on December 8, twelve bales; on December 12, nine bales; and on December 28, December 29, January 3, and January 4, two-hundred-twelve bales.

During 1973, Hargrave decided he would alter his usual procedure by using a module maker instead of loading the picked cotton into trailers for transport to the cotton gin. Under the new procedure, cotton was picked, compacted into large bales of seed cotton, and placed on pallets, located at the ends of the rows. Each pallet was capable of holding about 10 bales of cotton. Witnesses for Davis-Hunt testified that they visited Hargrave on December 1 because they were concerned over the small amount of cotton received from him thus far. At that time, there were 19 pallets containing cotton on the edges of the fields.

To justify his delay in performing the contract, Hargrave introduced the following evidence;

1. that the use of pallets made the ginning process slower and more difficult;
2. that the module maker increases the grade of cotton and requires fewer employees than the more conventional methods of picking cotton; and
3. that the large amount of rain in 1973 caused a delay in the growing season of about three weeks compared to the same period for 1972.

During the 1973 season, Hargrave sold the cotton ginned before December IS to Davis-Hunt for $44,000 at 30 cents per pound, and sold that ginned after December IS to the Bluff City Cotton Company for $63,000 at 62 cents per pound.

Thus, Davis-Hunt contends that the weight of the evidence demonstrates that Hargrave deliberately procrastinated in having his cotton ginned in order to sell it at a higher price than that agreed to in the contract. On the other hand, Hargrave contends that the evidence as to the late growing season, bad weather, and difficulty of ginning the cotton from the pallets excused the bulk of his tardiness in getting the cotton ginned and that the jury was justified in finding that Davis-Hunt had only been damaged to the extent of $9,000.

We affirm the trial judge in his conclusion that the evidence did not support the verdict and that the amount of damages awarded by the jury was the result of error or compromise.

The applicable rule of our decisions, in such cases as this, is that this court will not reverse the trial judge’s order granting a new trial unless we are convinced, upon a review of the evidence, that it plainly and palpably supports the jury’s verdict or plainly and palpably shows the trial court to be in error. Cobb v. Malone, infra; New Trial 71, 72(9), Vol. 15A, Alabama Digest.

In Hubbard v. Halstead (1975), 294 Ala. 688, 321 So.2d 169, released concurrently with this opinion, this Court has reaffirmed the long established principles of Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891). The rules governing our review of orders granting motions for new trial are therein stated and need not be repeated here.

It seems crystal clear, from a careful consideration of the evidence in this cause, that it cannot be said to plainly and palpably support the jury’s verdict. In view of a retrial of this cause, we think it would not be appropriate to discuss the evidence in any more detail than appears herein.

Davis-Hunt argues that it was entitled to a substantial verdict or to no verdict at all and asserts that this view was shared by the trial judge. This may have been the trial court’s view, but it is not necessary to make that determination.

Under the court’s oral charge (which the jury was bound to follow) the jury was charged that if Davis-Hunt was entitled to recover, its damages would amount to the difference between the contract price of the undelivered cotton and the market price on December 18, 1973. The jury was charged that they would have to look to the evidence “to see how much that is”— the “undelivered cotton.” Davis-Hunt contends, and the transcript supports it, that there was no evidence as to which of the 212 bales less than all of them, were delayed because of “bad faith.” To conclude otherwise would result in a verdict based on mere speculation and conjecture.

If a verdict is not justified on some reasonable hypothesis presented by the evidence under the court’s instructions, then it cannot stand. S. D. Winn Cigar Co. v. Wilson, 35 Ala.App. 466, 48 So.2d 64 (1950) (per Harwood, J.).

When it appears the verdict cannot be sustained on any reasonable hypothesis of fact founded on the evidence, the verdict must be held to have been the result of compromise or mistake and must be set aside. Holcomb & Bowden et al. v. Reynolds, 200 Ala. 190, 75 So. 938 (1917). Here, the trial judge found the verdict was the result of such “error or compromise.”

Of course, the trial judge is not permitted to set aside the verdict because, in his opinion, the jury gave too little or too much. However, under the rule of our cases, once he does so, his order will not be reversed unless the evidence plainly and palpably supports the verdict.

It is therefore that we affirm the order granting the plaintiff Davis-Hunt a new trial.

Affirmed.

MERRILL, BLOODWORTH, MADDOX, ALMON, SHORES and EMBRY, JJ., concur.

HEFLIN, C. J., concurs specially.

FAULKNER and JONES, JJ., dissent.

HEFLIN, Chief Justice

(concurring in result) :

I would affirm the trial judge. While I am in agreement with Justice Jones’ concept of the scope of appellate review when a trial judge grants a motion for a new trial, I am convinced that the trial judge did not abuse his discretion in this case. I am of the opinion that the jury verdict must have been the result of mistake or compromise and, therefore, must be set aside. Holcomb & Bowden v. Reynolds, 200 Ala. 190, 75 So. 938 (1917).

JONES, Justice

(dissenting) :

I respectfully dissent. See my dissenting opinion in Hubbard v. Halstead, 294 Ala. 688, 321 So.2d 169.

When, as here, the new trial order is based on the assigned ground that the verdict is contrary to the great preponderance of the evidence, the common law standard applicable to the presiding judge is that the verdict must be sustained if there is “evidence on both sides or some evidence to support the verdict.” Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1891).

In this case, the $9,000 verdict was substantially lower than the relief demanded by the appellee, but this fact alone is not a sufficient basis for granting a motion for new trial. The evidence introduced on the desirability of implementing module makers and the evidence that an unusually large amount of rain delayed the crop three weeks were facets which the jury could properly consider in determining what proportion of damage to Davis-Hunt was attributable to Hargrave’s unreasonable delay.

Admittedly, the record reveals that no single witness’s testimony supports a $9,000 verdict. Indeed, the tendencies of the evidence adduced by Davis-Hunt support a $52,810.50 verdict for the plaintiff, while the tendencies of the evidence adduced by Hargrave support a verdict for the defendant — no recovery. The trial Court’s order granting a new trial has the effect of holding that the jury was bound to accept the whole of the contention of one side or the other. I cannot agree.

The jury was free — to be sure, it was obligated — to sift from the whole of the evidence the truth; and, in its effort to find the truth, the jury may accept any part and reject any part of any witness’s testimony. This fact finding prerogative was clearly defined in the Court’s oral instructions to the jury.

Here, the jury found that the truth lay somewhere between the all or nothing contentions of the parties; and, in my opinion, the evidence supports its right to so find.

It is important to remember that it is not the role of the presiding judge to re-examine the facts of each case and decide whether the jury has returned the best of all possible verdicts; his role is only to make sure that the jury has based its verdict on some evidence properly before it.

I would reverse and remand.

FAULKNER, J„ concurs.

      . The trial Judge did not base his order on the ground discussed in Hubbard v. Halstead, supra, that the verdict was manifestly unjust, and I agree that that ground is not applicable.


author: ALMON, Justice.

text:
    W. Fred PARKER v. John T. McGAHA.
    SC 648.
    Supreme Court of Alabama.
    Sept. 18, 1975.
    As Corrected on Denial of Rehearing Oet. 30, 1975.
    Walker, Hill, Gullage, Adams & Um-bach, Opelika, for appellant.

      Alvin T. Prestwood, Montgomery, for appellee.
   ALMON, Justice.

This is the second appeal in this litigation between John T. McGaha, plaintiff-appellee, and W. Fred Parker, defendant-appellant. The opinion of this court in the first appeal was rendered on July 12, 1973, and now appears in 291 Ala. 339, 280 So.2d 769.

McGaha brought an action against Parker to recover payment on a note for $100,000 held by McGaha as payee. The makers of the note were the defendant-appellant Parker and two other men, Edward D. Mixon and Wilbur Ramsey, both of whom were originally named as defendants but who were dismissed because of the inability to obtain service upon them. Parker admitted signing the note and its default status. After a jury verdict for Parker was rendered, the trial court granted Mc-Gaha’s motion for new trial.

Prior to the transactions leading to this litigation, McGaha had voting control of a corporation called Southern Factors, Inc., by owning stock directly and by owning all the stock of another corporation, Colonial Securities Company, which in turn owned stock in Southern Factors, Inc.

In 1969 Ramsey and one Joe B. King purchased all of McGaha’s stock and gave to McGaha a note for $196,500 as payment. As security for the note, the stock certificates were placed in escrow by Ramsey and King subject to the terms of an escrow agreement. Payment default quickly occurred on this original note. Thereafter Parker, Mixon and Ramsey began negotiations with McGaha which led to the execution in May, 1970, of the note here sued upon by which Parker, Mixon and Ramsey promised to pay McGaha $100,000. In return McGaha assigned all of his rights, ti-tie and interest in the original $196,500 note to Parker, Mixon and Ramsey (Ramsey being a maker of this note along with Joe King). The original $196,500 note refers to an escrow agreement and purports to incorporate it by reference. Both documents refer to a buy-sell agreement between McGaha and Ramsey and King, but this instrument was never put in evidence.

After making three separate payments of $2,500 on the $100,000 note in accordance with an agreed schedule of payments, the makers, including Parker, defaulted. The default occurred after Parker learned that Southern Factors, Inc., was “defunct.” The stock certificates remained in escrow.

The first trial resulted in a jury verdict in favor of the defendant, which was set aside by the trial court on motion for new trial filed on behalf of Mr. McGaha. Mr. Parker appealed to this court, and the action of the trial court in setting aside the first verdict was affirmed.

When the case came for retrial, the attorneys representing Mr. Parker, some of whom had been added since the first trial, moved the court on August 23, 1973, that the second trial be conducted under the new Alabama Rules of Civil Procedure. The trial court denied this motion on the ground that the application of the new Rules of Civil Procedure to this case would not be feasible and would work injustice. Again, at a more formal conference with the judge and all attorneys held on September 6, 1973, a written motion to conduct the second trial under the new Alabama Rules of Civil Procedure was filed and again overruled. Appellant-defendant alleges that this was error.

Rule 86 of the Alabama Rules of Civil Procedure states that these rules

. . govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies.”

This is the first case considered by this court in which there has been a controversy as to whether the former rules or the new rules should be applied to a pending action. Since Rule 86 of the Alabama Rules of Civil Procedure contains language almost identical to the federal Rule 86, we look to federal cases for guidance.

A study of the federal cases which have considered this question does not reveal any definitive answers. In Doyle v. Loring, 107 F.2d 337 (6th Cir. 1939) the court dealt with the question rather summarily:

“. . . We are not required to enter into a detailed discussion of the rules. The Rules of Civil Procedure became effective while the suit was pending and whether they should have been applied was in the discretion of the court (Rule 86).” 107 F.2d at 340.

However, in John R. Alley & Co. v. Federal National Bank, 124 F.2d 995 (10th Cir. 1942), the court refused to give the trial judge such unfettered discretion :

. . The purpose is evident in the new rules to extend their application, unless for good cause shown, to all proceedings, whether brought prior to their effective date or thereafter. It has been held that the trial court must specifically find that the application of the new rules would be unjust in order for one complaining of their application to raise the question on appeal. Automobile Ins. Co. v. Springfield Dyeing Co., 3 Cir., 109 F. 2d 533. No good reason appears why the new rules should not have been applied in passing on the motion to dismiss the counterclaim, and it was error for the court to sustain the motion.” 124 F. 2d at 999.

Although Rule 86 leaves it to the opinion of the trial judge as to whether the application of the new rules to a pending action would be feasible or would work injustice, the application of the former rules should be the exception rather than the rule. When it is concluded by a trial judge that the application of the new rules would not be feasible or would work injustice, his reasons for so concluding should be set forth in the record.

We have encountered nothing in the record before us which would indicate that the application of the new rules would not be feasible or would work an injustice. As was previously indicated the trial judge has not favored us with his reason for denying the motion. Since this case must be remanded for new trial, for reasons hereinafter indicated, we suggest that the new rules be employed unless the trial court makes a contrary finding adequately supported by good and sufficient reasons.

The defendant filed his second amendment to pleas on September 6, 1973, consisting of plea 7, in setoff; plea 8, in re-coupment; plea 9, in setoff; and plea 10, in recoupment. On October 3, 1973, the defendant filed his third amendment to pleas, being a plea of recoupment claiming damages in the amount of $100,000 for deceit on the part of Mr. McGaha in the negotiation to Mr. Parker of the $196,500 promissory note. At the hearing before the trial court on November 12, 1973, the plaintiff filed a motion to strike defendant’s pleas 7 through 11, separately and severally, in the ground that they were not filed on a timely basis and that they raised or attempted to raise entirely new defenses to the plaintiff’s cause of action at a time when the issues in the case had been previously clearly drawn, and nearly three years after the filing of the complaint. The court granted the plaintiff’s motion. Appellant alleges that this was error.

The case of Rasmus v. Schaeffer, 230 Ala. 245, 247, 160 So. 244, 246 (1935) appears to be dispositive of this issue. There, it was stated that

“[ajfter pleadings have been settled and the cause tried in which there was a mistrial, and it is reset, the court may in its discretion refuse to allow the filing of additional pleas setting up entirely new defenses.”

If, upon retrial, however the rules of procedure are employed, it would be appropriate to reassess the allowance of amendments in the spirit of the new rules. But see Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975).

Most of appellant’s numerous assignments of error allege that the trial court erred in excluding parol evidence of the failure or partial failure of consideration for the note in controversy. It is evident from the record that the trial judge misapplied the “parol evidence rule” and its exceptions.

It is sometimes considered that the “pa-rol evidence rule” is not a rule of evidence at all but a rule of substantive law. Rinaudo v. Bloom, 209 Md. 1, 6, 120 A.2d 184, 188 (1956).

“Whether considered as a rule of substantive law or as a rule of evidence, the so-called ‘parol evidence’ rule is far from pellucid. The rule does not allow the maximum passage of light without diffusion or distortion. A strict, formal and technical interpretation of the rule has long since been abandoned. There are numerous exceptions to it. One of the first exceptions arose as early as Lord Coke’s time. Since that time, the courts have repeatedly found it necessary to resort to new exceptions to the rule. Wig-more indicates that there are now at least 9 or 10 such exceptions.” Young v. United States, 327 F.2d 933, 935 (1964).

A mention of but a few of the exceptions recognized by the Alabama courts will illustrate why there is so much confusion concerning the rule:

1. Parol evidence is always admissible to show that an instrument is void or to show a lack or failure of consideration. Corbin v. Sistrunk, 19 Ala. 203, 205-06 (1851);

2. Evidence of fraud is always ad-. missible, even though there is a completely integrated writing. Nelson Realty Co. v. Darling Shop, 267 Ala. 301, 309, 101 So.2d 78, 84 (1957); and

3. Where there is ambiguity in a contract, parol evidence is admissible to aid in the contract’s interpretation. McClendon v. Eubanks, 249 Ala. 170, 178, 30 So.2d 261, 268 (1947).

In the present case, the trial judge refused to allow parol evidence of failure or partial failure of consideration. This was error.

For the reasons indicated, the judgment is due to be reversed and the cause remanded.

Reversed and remanded.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON and EM-BRY, J J., concur.

Opinion corrected; application for rehearing overruled.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.

       This case was originally assigned to a justice formerly on this court. It has been reassigned to the writer who has listened to the tape recordings of the oral argument.


text:
    MOBILE TURNKEY HOUSING, INC., a corporation and Commercial Contractors, Inc., a corporation v. CEAFCO, INC., a corporation By and Through Max E. Miller, as its Trustee.
    SC 470.
    Supreme Court of Alabama.
    Sept. 18, 1975.
    Rehearing Denied Nov. 6, 1975.
    Donald F. Pierce, G. Hamp Uzzelle, III, Mobile, for appellants.
    Bert S. Nettles, Mobile, for appellee.
   ALMON, Justice.

Respondents appeal from an adverse decree in a suit by a subcontractor against the general contractor.

In late 1968 the Mobile Housing Authority, pursuant to a program sponsored by the Housing and Urban Development Office (HUD), began to solicit bids for a housing project to be built in Mobile. The contract for “Jesse Thomas Homes,” as the development was called, was awarded to Mobile Turnkey Housing, Inc. (Turnkey). Turnkey was incorporated by Commercial Contractors, Inc. (Commercial) for the sole purpose of developing this project. The Mobile Housing Authority transferred title to the property to Turnkey. Turnkey contracted with Commercial to act as general contractor in the construction of the project. Commercial sub-contracted with Ceafco, Inc. (Ceafco), the complainant, to do the grading and site work on the project.

Ceafco encountered soil that could not be compacted to the required density, a situation which could only be corrected by bringing in large amounts of borrow fill. The trial court found that because of the encounter with bad sub-soil Ceafco ceased work on the project on May 15, 1969.

A meeting between representatives of Ceafco and Commercial was held on May 19, 1969, at which, according to the court’s findings, Commercial orally agreed to bear this extra expense. (This oral promise was disputed by Commercial.) Ceafco went back to work and Commercial submitted a request to HUD for the extra cost— $110,715.00. The Atlanta office of HUD refused this request, but the work continued and the site work was completed about the first of January, 1970.

Throughout the summer payments for the work were made to Ceafco on a periodic basis. About once a month Ceafco received payment for the work they had completed up to that point. Each time Ceafco received payment they executed a “receipt and lien waiver” which stated that Ceafco waived and released any right they might have to file a lien against the property for work done up to the last date of payment.

Ultimately the entire project was completed and the property was conveyed back to the Mobile Housing Board. Upon Commercial’s refusal to reimburse Ceafco for the extra cost, Ceafco brought this suit.

As originally brought this lawsuit joined three respondents: Turnkey, Commercial and The Mobile Housing Board. However, Ceafco later amended its complaint to strike the Mobile Housing Board.

Ceafco’s complaint, as later amended, bases a claim for relief on the oral agreement allegedly made between Ceafco and Commercial on May 19 and seeks to establish a lien in the amount of $110,715.00 on the property. After the commencement of the suit, but before the case went to trial, Caefco filed a petition for bankruptcy, and Ceafco is now maintaining this suit through its trustee.

In their answer, Commercial and Turnkey set out the following defenses to the complaint:

1. that Ceafco had received full payment under the contract of February 20, 1969;

2. that the “receipt and lien waiver” forms that Ceafco executed each time it received a periodic payment constituted waivers releasing Commercial from any liability on any claim connected with the project;

3. that the contract of February 20 stated that it was the entire agreement and any changes to it would have to be in writing (Art. XV of Contract), and that Commercial would not be liable for any extra work or material without written order (Art. IV of Contract); and

4. that, because Ceafco was already legally bound to provide borrow fill under the original contract of February 20, 1969, there was no consideration for any oral promise that might have been made between Ceafco and Commercial at the meeting of May 19.

The trial judge told the advisory jury in his charge that the doing of an act which you are already legally obligated to do is not sufficient consideration to support a contract. But an exception to this rule exists when due to unforeseen and extraordinary difficulties in performance the law must sustain the promise based upon standards of honesty and fair dealing.

Following these instructions the jury returned interrogatories to the effect that the new promise to pay by Commercial to Ceafco was supported by adequate consideration and there was not a valid release of all claims by Ceafco supported by adequate consideration.

In its final decree the court found as follows:

“Sixth: That while the Court considered and finds said written contract of February 20, 1969, to be unambiguous and required Ceafco to perform the work for which the new promise to pay additional money was made, it further finds that the respondent Commercial Contractors, Inc., made a new promise to Ceafco, Inc., to pay it additional money for the additional backfill material or borrow, and that such new promise was supported by a valid consideration; that the instant fact situation constitutes an exception to the general rule that a promise to pay additional compensation for the doing of that which the promise is already legally bound to do or perform is insufficient consideration for a valid and enforceable contract; that the instant fact situation properly comes within the ‘unforeseeable difficulties exception’; that the Court recognizes the equities of the promise of respondent Commercial Contractors, Inc., to Ceafco, Inc. for additional compensation based upon what the Court finds to have been extraordinary and unforeseeable difficulties in the performance by Ceafco, Inc. of the said written contract of February 10, 1969; and that in the circumstances of this case the Court sustains the consideration for said new promise, based upon standards of honesty and fair dealing and affording adequate protection against unjust or coercive exactions. (E. g. Pittsburgh Testing Laboratory v. Farnsworth & Chambers Co., C.C.A.10th, 251 F.2d 77).
“Ninth: The Court finds that the respondents were not guilty of any misrepresentations and therefore Ceafco is not entitled to any recovery on that aspect of its bill of complaint alleging legal fraud.

Upon these findings, the court ordered that a judgment in the amount of $112,929.75 be entered against Commercial in favor of Ceafco, and decreed that a lien in this amount be placed upon monies owed by Turnkey to Commercial.

From this decree of the circuit court Commercial and Turnkey have appealed.

We view the dispositive issue to be whether the trial judge was in error in finding consideration for the new promise to pay additional money simultaneously with a finding that the original sub-contract covered the additional work encountered.

We set out certain portions of the subcontract :

“Article I — Sub-contractor shall furnish all labor, materials and equipment and perform all work necessary to complete the following part or parts of the work of the General Contractor in all respects as is therein required of the Contractor, and all work incidental thereto, namely:
“I. Job requirements of site work including :
“(a) On-site excavation
“(b) Furnishing and placing borrow fill
“(m) It is agreed that this Subcontractor will be responsible for bringing the subgrade to within l/10th of a foot, plus or minus, in all areas including areas under building (subgrade under buildings means 8 inches below finished floor elevation).
“II. It is agreed that time is of the essence in this contract and subcontractor agrees to pursue the work in accordance with General Contractor’s schedule.
“Article II — (a) Contractor shall have the same rights and privileges against the Sub-contractor herein as the Owner in the General Contract has against Contractor.
(b) Sub-contractor acknowledges that he has read the General Contract and all plans and specifications and is familiar therewith and agrees to comply with and perform all provisions thereof applicable to the work to be performed by Sub-contractor.
“EXHIBIT A
“VI. It is agreed and understood that this is a lump sum contract for job requirements as identified above. Subcontractor acknowledges that he has visited the site and apprised himself of all conditions whether showing plans and specifications or not, including latent subsurface conditions, and agrees that the lump sum price set forth herein will be compensation in full on work performed by him regardless of any conditions that may be encountered in the execution of the contract.
“(Exhibit A) (Continuation from Page 1) “Exception is made to para. VI above in that sub-contractor will paid [sic] .65 (Sixty-five cents) per cubic yard if any undercutting is required as a result of unsatisfactory material below the surface. Contractor will determine when undercutting is required and no undercutting will be performed without written notice from contractor.” (Emphasis ours).

It is manifestly clear from the court’s findings and the provisions of the contract set forth that Ce afeo contracted to do the work regardless of any soil conditions that might be encountered. Further, the evidence tends to show that the provision of the contract which provided for the payment of an additional sixty-five cents per cubic yard for undercutting required as a result of unsatisfactory material below the surface was negotiated by the parties to provide for the very contingency which is the subject of this litigation.

The alleged “unforeseeable consequences” can hardly be termed as such when the contract in unambiguous terms provided for just such a contingency.

The well reasoned case of Shriner v. Craft, 166 Ala. 146, 51 So. 884 (1910), dealt with this problem and concluded by saying:

“It is manifest that, in order for there to be a mutual assent, there must be something to be assented and agreed to on each side. Where the parties agreed to rescind the contract, each one gives up the provisions for his benefit, the mutual assent is complete, and the parties are then competent to make any new contract that may suit them. Where one piece of work is substituted for another, the contractor is released from doing one, in consideration that he will do the other. But where one party refuses to do the work, which his contract requires him to do, or even threatens to abandon the work, unless he is paid more, and the other promises to pay more, the original contract still remaining subsisting, we consider it merely a promise to pay for what he was already obliged to do, and a nudum pactum; consequently there was no error in sustaining demurrers and striking pleas, as set out in assignments Nos. 6 to 16, inclusive.”

This rule was further elaborated on in McDonough v. Saunders, 201 Ala. 321, 326, 78 So. 160, 165 (1917) :

“ . . . It conclusively appears that the change or alteration of the contract was a mere bonus required or demanded by Aldrich and Towers to perform their valid contract as to which they were then required by law to perform. No benefit whatever could or was intended to accrue to complainant or his associates by the change, nor any detriment to Aldrich and Towers. It was purely a bonus to them to perform their part of a valid contract. Such agreements or modifications of existing contracts are absolutely void. When by an amended or modified contract a party does only that which he was theretofore obligated to do by the original contract, he cannot legally demand additional compensation, or other obligations of the other party, as an inducement or reward for performing his part. If the other party promise to pay him more, or to further obligate himself to induce performance of that only as to which the party was originally bound to perform, the promise is a mere nudum pactum, and courts will not lend their aid to enforce such modifications or promises for additional compensation or further obligations so promised. Such is the well-settled doctrine of this court. Shriner v. Craft, 166 Ala. 146, 51 South. 884, 28 L.R.A. (N.S.) 450, 139 Am.St.Rep. 19; Montgomery Co. v. Farley Bank, 200 Ala. 170, 75 So. 918.
“The true reason for the doctrine is well stated by the Supreme Court of Minnesota as follows:
“ ‘Where the refusal to perform and the promise to pay extra compensation for the performance of the contract are one transaction, and there are no exceptional circumstances making it equitable that an increased compensation should be demanded and paid, no amount of astute reasoning can change the plain fact that the party who refuses to perform, and thereby coerces a promise from the other party to the contract to pay him an increased compensation for doing that which he is legally bound to do, takes an unjustifiable advantage of the necessities of the other party. * * * Surely it would be a travesty on justice to hold that the parties so making the promise for extra pay were estopped from asserting that the promise was without consideration. A party cannot lay the foundation of an estoppel by his own wrong,’ where the promise is simply a repetition of a subsisting legal promise. ‘There can be no consideration for the promise of the other party, and there is no warrant for inferring that the parties have voluntarily rescinded or modified their contract. * * * The promise cannot be legally enforced, although the other party has completed his contract in reliance upon it.’ King v. Railroad Co., 61 Minn. 482, 63 N.W. 1105; Scott v. Rawls, 159 Ala. 399, 48 So. 710; Alaska Packers’ Ass’n v. Domenico, 117 F. 99, 54 C.C.A. 485 (C.C. of App. Ninth Circuit 1910); Davis & Co. v. Morgan, 117 Ga. 504, 43 S.E. 732, 61 L.R.A. 148, 97 Am.St.Rep. 171 (1903); Esterly Machine Co. v. Pringle, 41 Neb. 265, 59 N.W. 804 (1894).”

1 S. Williston, A Treatise on the Law of Contracts, § 130 (3d ed. 1957) provides:

“§ 130. Promise to Perform or Performance of Any Obligation Previously Existing under Contract with Promisee. Where A and B have entered into a bilateral agreement, it not infrequently happens that one of the parties, becoming dissatisfied with the contract, refuses to perform or to continue performance unless a larger compensation than that provided in the original agreement is promised him. Especially common is the situation where a builder or contractor undertakes work in return for a promised price and afterwards, finding the contract unprofitable, refuses to fulfill his agreement but is induced to fulfill it by the promise of added compensation.
“ ‘What we hold is that when a party merely does what he has already obligated himself to do, he cannot demand an additional compensation therefor, and, although by taking advantage of the necessities of his adversary, he obtains a promise for more, the law will regard it as nudum pactum,, and will not lend its process to aid in the wrong.’ ”

See also Little v. Reddit, 264 Ala. 371, 88 So.2d 354 (1956) and Hawkins v. First Federal Savings and Loan Ass’n, 291 Ala. 257, 280 So.2d 93 (1973).

Admittedly there was evidence that Commercial furnished Ceafco with a soil test which indicated that there were no unsuitable soil conditions at the worksite. This matter was submitted to the advisory jury which found no fraud or misrepresentation. The trial court reached the same conclusion.

The principle of law which we follow seems on occasion to be rather harsh. Yet to hold otherwise would permit one party to a valid and unambiguous contract to use his failure of performance as a coercive force to extract a higher price than was originally contracted for.

In view of our holding, we do not find it necessary to reach other assignments of error.

The decree is due to be reversed and the cause remanded.

Reversed and remanded.

All the Justices concur.

       This case was originally assigned to a justice formerly on this court. It has been reassigned to the writer who has listened to the tape recordings of the oral argument.


author: SHORES, Justice. EMBRY, Justice

text:
    Gaston Leroy HUDSON v. COFFEE COUNTY, Alabama, etc., et al.
    SC 1256.
    Supreme Court of Alabama.
    Sept. 18, 1975.
    Rehearing Denied Nov. 6, 1975.

      Francis H. Hare, Jr., Birmingham, for appellant.
    Cassady & Fuller and Rowe & Rowe, Enterprise, G. A. Lindsey, Elba, for appel-lees.
   SHORES, Justice.

The trial court granted defendants’ motion to dismiss plaintiff’s complaint in which he alleged that on January 19, 1972, the defendants were in charge or control of a bulldozer and a truck (sometimes known as a “lowboy”) ; that the defendants entered into an agreement regarding the use and operation of said equipment whereby the defendants leased or bailed, for a valuable consideration, said equipment for the purpose of moving dirt and making other improvements on the farm owned by the plaintiff’s father.

After having completed part of the contracted work, the defendants attempted to load the bulldozer onto the lowboy to move it to another part of the farm for the purpose of performing further work.

While attempting to load the bulldozer onto the lowboy, the lowboy moved or rolled forward and ran over or struck the plaintiff causing him permanent injuries. The plaintiff claimed that the defendants were negligent in their control and operation of the bulldozer and the truck, and that they breached their contract in failing to exercise due care to provide and operate the equipment in a reasonably safe manner.

The defendants are Coffee County, its Probate Judge, Commissioners in their official and individual capacities, and agents. In granting the defendants’ motion to dismiss, the trial court observed:

“A county is a governmental agency of the State and is chargeable with and liable for only those claims and demands which law imposes upon them. It can act only through agents. The agents must confine their acts within the limits of their powers in order to bind the county. The office of County Commissioner, Judge of Probate and the County Commission are creatures of the legislature. The limitation of the powers of such officers and commission is within the discretion of the legislature. If the Judge of Probate, the Commissioner, or the County Commission in the exercise of ministerial powers as agents of the county exceed the limits of their power, the acts are void. Such acts cannot be made the basis of legal liability of the county.
“A county is not liable to an individual for negligent injury sustained as a result of performance of governmental functions in the absence of a constitutional provision or statute expressly declaring liability. When the function of the county in question is proprietary in its character, and such function is authorized by law, the county is liable to suit for the negligence of its agents in the exercise of their duties.
“The plaintiff alleges in the last paragraph of its [sic, his] claim for relief that ‘the defendants were then and there engaged in a proprietary function’ but omits an essential element of the claim for relief. The essential element omitted is that the proprietary function was authorized by law. Therefore, the court is of the opinion the claim for relief is fatally defective and grounds of the motions to dismiss properly point out the defect.”

The court denied the motion to dismiss of each individually named defendant, in their individual capacities. This appeal is from that judgment.

This case was submitted in this court on August 6, 1975. The appellant devotes the major portion of his brief to an appeal to abolish the defense of governmental immunity in tort actions as to counties. This court did just that in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), but limited the rule of that case and to similar causes of action arising thereafter. The decision to give that case, as well as two others decided on the same date (Jackson v. City of Florence et al., 294 Ala. 592, 320 So.2d 68, and Harris v. Board of Water & Sewer Commissioners of City of Mobile, 294 Ala. 606, 320 So.2d 624, so-called quasi-prospective application was not made hastily. Although urged to do so by many amicus curiae briefs filed in opposition to applications for rehearings in those three cases, this court declined to alter their quasi-prospective application.

As sympathetic as we are with the appellant’s plight, we think it would be unwise to disturb a decision so recently and carefully reached.

Therefore, we must look to the law as it existed prior to Lorence, supra. Although the majority of this court who concurred in Lorence concluded the rule of county immunity to be unjust, there is little debate about what the rule was. In so far as counties are concerned, to be distinguished from municipal corporations, there are no cases from this court holding that a county is liable for torts committed while acting in a proprietary capacity. One opinion contains language suggesting that such was the rule, assuming that there was a statute authorizing the county to perform the acts from which the tort arose. In Laney v. Jefferson County, 249 Ala. 612, 614, 32 So.2d 542, 543 (1947), which involved a wrongful death action brought against the county claiming that its agents, in the operation of a county hospital, negligently caused the death of plaintiff’s intestate, the late Chief Justice Livingston said:

“While each count alleged that Jefferson County operated the Jefferson Hospital as a proprietary institution, such allegation would not be admitted if the county did not possess the legal authority so to do. A county is a ‘governmental auxiliary or agency possessing no power and subjected to no duty not originating from the statute creating it.’ Askew v. Hale County, 54 Ala. 639, 25 Am.Rep. 730. The question of whether the county is operating a proprietary institution is controlled by statutes which authorize it. Therefore the demurrer does not admit that the county was so engaged for that is a conclusion of law which a demurrer does not admit. . . .
“But when the operation in question is proprietary in its character, and as such authorised by law, it is liable to suit for torts committed by its agents in the exercise of their duties as such. [Citations Omitted].” (Emphasis Supplied)

In commenting on county immunity in Alabama, Messrs. Copeland and Screws, “Governmental Responsibility for Tort in Alabama,” 13 Ala.L.Rev. 296, 311, 312, observed :

“As a simplified proposition, a county is not civilly liable for contracts, debts, or torts where the obligation arose in an area where the county had no statutory authorization to act.
“An examination of the cases reveals that before a county can act in a certain field, the authority to act must arise from an express statute and be some-whate specifically conferred.
“. . . There must be an express and precise statute creating responsibility for tortious injuries inflicted by the county engaged within an .authorized function, while for contracts, debt and other property responsibility within the same authorized function, no such liability statute is necessary.
“Before liability attaches to a county for tortious conduct, there must be the following three prerequisites :
“(1) The act must be committed by an employee within the scope of his authority ;
“(2) The act must be pursuant to the discharge of a duty or function expressly and specifically conferred on the county by the Legislature;
“(3) The Legislature must have expressly placed liability on the county for the negligent performance or nonperformance of the duty or function.”

These writers went on to say that as of 1961, they could find no case wherein a county function which resulted in tortious injury had been held to be corporate. We find none as of 1975, and our study of the cases leads us to conclude that the three enumerated elements were essential, prior to Lorence, supra, to state a claim against a county upon which relief could be granted. We find no error in the trial court’s holding that, absent an allegation that the county in this case was discharging a duty expressly authorized by the legislature, the plaintiff failed to state a claim upon which relief could be granted.

The only remaining error urged by the appellant is the trial court’s granting the defendants’ motion to dismiss his contract claim..

We appreciate that the existence of governmental immunity as a defense resulted in litigants attempting to plead around that defense by alleging a contract action where no such effort would have been undertaken but for the defense of governmental immunity. Green v. Hospital Building Authority of City of Bessemer, 294 Ala. 467, 318 So.2d 701 (1975), was a recent effort which was not successful. As the opinion in that case explains, specific terms in the contract requiring the exercise of reasonable care in its performance must be averred. It is insufficient to allege merely that the defendant impliedly contracted to use reasonable care.

In the instant case, the allegation is that the defendants impliedly or expressly contracted to exercise due care to provide equipment in a reasonably safe condition and to otherwise conduct the movement and operation of the equipment in a reasonably safe manner. As Green, supra, points out, such general averments amount to nothing more than a breach of duty imposed by law, giving rise to an action in tort.

Lorence, supra, has now eliminated the necessity for attempting to convert tort claims into the contract actions to circumvent governmental immunity as to counties ; but, as we have concluded that the holding in that case is applicable only to causes of action arising subsequent to the date thereof, we are compelled to hold that Green, supra, controls and precludes recovery on the contract theory in the instant case.

The judgment appealed from is, therefore, affirmed.

Affirmed.

BLOODWORTH, FAULKNER, JONES and ALMON, JJ., concur.

MERRILL and MADDOX, JJ, concur in the result.

EMBRY, J, concurs in part and dissents in part.

HEFLIN, C. J, not sitting.

EMBRY, Justice

(concurring in part and dissenting in part) :

I concur to affirm the judgment below. However, I dissent from, and disagree with, that portion of the opinion where it is stated:

* * * The appellant devotes the major portion of his brief to an appeal to abolish the defense of governmental immunity in tort actions as to counties. This court did just that in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975) * * *”

In that case the action was against a public corporation organized by the county pursuant to statutory authority, as pointed out in my separate opinion. The Hospital Board, by virtue of the statute giving it life, was amenable to suit ex delicto and ex contractu. In this case the county of Coffee could not be amenable to suit, either ex delicto or ex contractu, for the simple reason that there had never been a legislative grant of authority made to it that permitted the actions in which it was engaged nor the authority to enter into the agreement pertaining to those actions, from either or both of which the suit arose.

As to that portion of the opinion which makes reference to Green v. Hospital Building Authority of City of Bessemer, my views are expressed, as well as ability permits, in the dissent voiced there. Therefore, there is no need to reiterate here.


author: FAULKNER, Justice.

text:
    In re Donald Wayne SPEARS v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1508.
    Supreme Court of Alabama.
    Oct. 30, 1975.
    William J. Baxley, Atty. Gen, and Joseph G. L. Marston, III, Montgomery, and Aubrey. Ford, Jr, Tuskegee, for petitioner.
    None for respondent.
   FAULKNER, Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Spears v. State, 55 Ala.App. 456, 316 So.2d 704.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: MADDOX, Justice.

text:
    In re Gloria FORTSON v. Hon. W. G. HAWKINS, Circuit Judge. Ex parte Gloria Fortson.
    SC 1232.
    Supreme Court of Alabama.
    Oct. 2, 1975.
    Rehearing Denied Nov. 6, 1975.

      Beard & Beard, Guntersville, and John Baker, Rainsville, for petitioner.
    Lusk, Swann, Burns & Stivender, Gadsden, for respondent.
   MADDOX, Justice.

The question presented is the authority of a Circuit Judge to remove a Register.

Gloria Fortson, petitioner here, was appointed Register of the Circuit Court of DeKalb County by the Honorable John B. Talley in 1971, for a term expiring in January, 1977. After her appointment, the Ninth Circuit was divided and the appointing Judge, Judge Talley, is now serving in another circuit. This controversy developed when the presiding Judge of the Ninth Circuit, the Honorable W. G. Hawkins, entered an order removing petitioner Fortson as Register on March 28, 1975, her removal to be effective April 15, 1975. Judge Hawkins, in his Order of Removal, cited the following as the cause for removal :

“1. She has paid out fees coming into her office:
(a) Contrary to law
(b) Contrary to my instructions
(c) Contrary to an opinion of the Attorney General . .”

The facts are not seriously contradicted. The disagreement revolves around the payment by Mrs. Fortson of stenographic fees to the secretary to the District Attorney, for stenographic services rendered in several reciprocal non-support cases.

Under the provisions of Title 34, Section 119(b) Judge Hawkins had ordered the State of Alabama to pay certain fees and costs in some reciprocal non-support cases. The stenographic fees now in dispute were paid by the State of Alabama to the Register, who in turn paid these stenographic fees to the District Attorney’s secretary who had actually done the stenographic work. Judge Hawkins told her that “it was my opinion” that the stenographer’s fees should be paid to the county, pursuant to Title 1, Section 16, Code. Hence, a dispute arose.

An attorney general’s opinion, dated November 14, 1972, had stated that “[t]he fees for stenographic services of the attorney for the plaintiff, here the District Attorney, are not a part of the Solicitor’s Fund, but belong, in my opinion, to the attorney for the plaintiff who performs or has this service performed.” Mrs. Fortson relied on this opinion. The District Attorney’s secretary had actually done the stenographic work in the reciprocal non-support cases.

Judge Hawkins asked for and received from the Attorney General an opinion in February, 1975, which he claims supports his position that the stenographic fees in reciprocal non-support cases must go to the county when the Register is salaried, as Mrs. Fortson was. The 1975 opinion of the Attorney General, written in answer to a letter from Judge Hawkins, seems to conflict with the earlier opinion of the Attorney General. The latest opinion stated, in part:

“Therefore, since the Register of the Chancery Court in DeKalb County is a salaried official, it is my opinion that Title 1, Section 16, supra, would apply to all fees collected by the Register of the Chancery Court whether they be pursuant to Title 34, Section 119(6) [b], Code of Alabama 1940, Recompiled 1958, which is mentioned in your letter, or any other statute requiring collection of fees by a register found in the code.”

It should be pointed out, however, that the assistant Attorney General who drafted the latest opinion of the Attorney General testified at the hearing before Judge Hawkins that he did not mean to include “stenographic fees” as one of the fees which the Register should pay to the county. In fact, he was of the opinion that the stenographic fees should go to the person who did the work. In other words, he agreed with Mrs. Fortson.

Was Judge Hawkins legally correct in believing that the stenographic fees should be paid to the county? We think not. Title 1, Section 16, does provide that “all fees required under the terms of this Code to be paid to or collected by such officials shall by said officials be paid into the treasury of the county.” But did the Legislature intend for the statute to provide that every fee collected by the register should be paid'to the county? We think not. It would appear that Title 1, Section 16 was designed to require the registers on salaries to pay any fees which they would have received had they been on a “fee basis” into the county treasury. For example, in counties where the registers are on a “fee” basis, does the register get to keep the “stenographic fee” or does he pay it to the attorney who performs or has the stenographic service performed ?

Consider this fact situation. The sheriff of a county is on a “fee” basis, but the register is on a salary, and the sheriff serves papers in a reciprocal non-support case. Does the sheriff lose his fee for serving the papers and does it go to the county treasury ? We believe not.

During the hearing before Judge Hawkins, the assistant Attorney General who had prepared the latest Attorney General’s opinion, testified that it was his belief that several kinds of fees collected by the Register were not to be paid to the county. These include stenographic fees, attorney’s fees, and guardian ad litem fees. We would agree with this observation. We do not think the Legislature intended that result, and consequently, we cannot uphold Judge Hawkins in removing Mrs. Fortson from office.

Having answered the main question, we consider it unnecessary to determine other points raised by Mrs. Fortson, viz: whether Mrs. Fortson’s actions were “cause” for her removal; whether Judge Hawkins could remove her since he did not appoint her; whether the record shows that Judge Hawkins ever ordered or instructed Mrs. Fortson to pay the fees into the county treasury; or whether Mrs. Fortson was accorded due process of law.

Judge Hawkins argues that Mrs. Fortson did not assign any errors on the record until one day before oral argument. This is true, but we decline to dismiss the petition. Mrs. Fortson filed an original petition in this Court seeking to have this Court review Judge Hawkins’ order removing her as Register. This Court ordered Judge Hawkins to file in this Court a transcript of the record and the proceedings in the matter, and stayed his Order of Removal pending a final determination of the cause.

Even though this Court has held that the Rules of Practice apply to all petitions for extraordinary writs [Ex parte NAACP, 268 Ala. 504, 109 So.2d 140 (1959)] the requirement of Rule 1 that assignments of error must be made is inappropriate to an original petition for a remedial writ. An assignment of error in an appellate court performs the same office in all material respects as the initial pleading in a court of original jurisdiction. Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639. Here, the original petition constituted the pleading, and the original petition clearly and concisely stated the errors allegedly made by the trial court. Furthermore, this Court permitted the petitioner to write her assignment of error into the record prior to submission. We reserved ruling on the question at that time. Consequently, we are of the opinion that the petition should not be dismissed.

The Order of Removal entered by the Honorable W. G. Hawkins is reversed and the cause is rendered.

Motion to dismiss denied; reversed and rendered.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.

      . “A court of this state acting either as an initiating or responding state may in its discretion direct that any part of or all fees and costs incurred in this state, including without limitation by enumeration, fees for filing, service of process, seizure of property, and stenographic service of both petitioner and respondent, or either, shall be paid by the state. Where the action is brought by or through the state or any agency thereof there shall be no filing fee. Security for costs may or may not be required when the petition is filed by or on behalf of a nonresident dependent, as the court may in its discretion direct.”

      . “In all counties and cities where officials are paid on a salary basis instead of a fee basis, all fees required under the terms of this Code to be paid to or collected by such officials shall by said officials be paid into the treasury of the county or municipality or to the official performing the duties of county treasurer or municipal treasurer except as otherwise provided by law.”


text:
    LOEB AND COMPANY, INC., a corp. v. Charles SCHREINER.
    SC 850.
    Supreme Court of Alabama.
    Oct. 2, 1975.
    Rehearing Denied Nov. 6, 1975.
    James W. Garrett, Jr. and Watkins C. Johnston, Montgomery, for appellant.
    Vaughan H. Robison, and Philip H. Butler, Montgomery, for appellee.
   ALMON, Justice.

This is an appeal from a judgment of the Circuit Court of Lowndes County. The court decreed that the plaintiff and the defendant entered into an oral contract for the purchase and sale of one hundred fifty bales of cotton but that the contract was unenforceable under the Alabama Uniform Commercial Code because the defendant was not a “merchant” as that term is used and defined.

The plaintiff-appellant, Loeb and Company, Inc., is engaged in the marketing of raw cotton. James L. Loeb of Montgomery is President of the company and has bought cotton from the defendant-appellee, Charles Schreiner, for the past four or five years. Charles Schreiner is a cotton farmer and has been engaged in the farming of cotton and other crops since 1963.

Following a conversation on the 18th or 20th of April, 1973, with regard to the price paid by appellant company to Marlowe Reese, a neighbor of appellee, appel-lee telephoned appellant on April 23 and asked if the price paid Reese was available to him. He received from the president of appellant company a statement that he would pay appellee the same price. Appellant maintained at trial that appellee orally contracted with him during the telephone conversation to sell appellant company one hundred fifty bales of cotton. Appellee admitted that there were negotiations but maintained that he never agreed to sell the one hundred fifty bales.

The date, parties, terms and conditions of the alleged contract to sell were confirmed in the records of appellant company on April 23, 1973, and two copies of a confirming statement were mailed to appellee. Appellee received the confirming statement but neither signed it nor returned it, nor in any manner took exception to it until four months later when appellant telephoned him inquiring the whereabouts of the statement. In the meanwhile the price of raw cotton had risen from the price in the alleged contract of 37J4 cents to the middle 80 cents.

When appellant company telephoned ap-pellee and inquired about the confirming statement, appellee said that he did not intend to sign and return it and told appellant to discuss the matter with his attorney.

The trial court found that there was an oral contract but that the contract was unenforceable under the Alabama Uniform Commercial Code because the appellee was not a merchant as that term is used in Tit. 7A, §§ 2-104 and 2-201, Code of Alabama, 1940, Recompiled 1958.

Tit. 7A, § 2-201 is the section which sets out the statute of frauds for Article 2 of the Uniform Commercial Code. It governs all contracts for the sale of “goods.” Cotton is included within the definition of “goods” as defined by the Code. Cox v. Cox, 292 Ala. 106, 289 So.2d 609 (1974). § 2-201 provides in pertinent part as follows :

“Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
“(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.” (Emphasis added).

Appellant contends that the trial court erred in finding that the appellee cotton farmer was not a merchant and that.§ 2-201(2) was not applicable. If appellee is not a “merchant,” § 2-201 would act as a bar to the enforcement of the contract in question. However, if appellee is a “merchant,” he would be liable on the contract because he did not within ten days give notice of objection to appellant’s confirming statement. Tit. 7A, § 2-104(1) defines “merchant” as follows:

“(1) ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”

Only a few courts have considered the question of whether a farmer is a “merchant.” In Cook Grains v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965), the Arkansas Supreme Court held that a soybean farmer was not a merchant when he was merely trying to sell the commodities he had raised. The court stated that there was not

“ . . . a scintilla of evidence in the record, or proffered as evidence, that ap-pellee is a dealer in goods of the kind or by his occupation holds himself out as having knowledge or a skill peculiar to the practices of goods involved in the transaction, and no such knowledge or skill can be attributed to him.” 239 Ark. at 964, 395 S.W.2d at 556.

In Oloffson v. Coomer, 11 Ill.App.3d 918, 296 N.E.2d 871 (1973), the Third Division of the Appellate Court of Illinois stated in dictum that a farmer in the business of growing grain was not a “merchant” with respect to the merchandising of grain. However, in Campbell v. Yokel, 20 Ill.App.3d 702, 313 N.E.2d 628 (1974), the Fifth District of the Appellate Court of Illinois dealt with a case that involved an action against some soybean farmers on an alleged breach of an oral contract for the sale of soybeans. The court held that the soybean farmers, who had grown and sold soybeans for several years were “merchants” when selling crops and were therefore barred by § 2-201(2) from asserting the statute of frauds as a defense.

One court has suggested that whether or not a farmer is a “merchant” within the meaning of § 2-104 should turn upon whether or not he has engaged in a particular type of sale in the past. In Fear Ranches, Inc. v. Berry, 470 F.2d 905 (10th Cir. 1972), a breach of warranty case, the court held that where the defendant cattle farmers made a sale to a non-meatpacker for resale when they had previously sold all of their cattle to meatpackers, they were not “merchants” with respect to the sale to the non-meatpacker. The court felt that the sale of cattle for resale was a sale of a different type of goods and made up a different type of business than the sale of cattle to meat-packers.

We hold that in the instant case the ap-pellee was not a “merchant” within the meaning of § 2-104. We do not think the framers of the Uniform Commercial Code contemplated that a farmer should be included among those considered to be “merchants.”

In order for a farmer to be included within the § 2-104 definition of “merchants,” he must do one of the following:

1. deal in goods of the kind;
2. by his occupation hold himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction; or
3. employ an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

Since the farmer in the instant case did not qualify as a merchant under 3 above, he would have to qualify under 1 or 2. It is not sufficient under 2 that one hold himself out as having knowledge or skill peculiar to the practices or goods involved, he must by his occupation so hold himself out. Accordingly, a person cannot be considered a “merchant” simply because he is a braggart or has a high opinion of his knowledge in a particular area. We conclude that a farmer does not solely by his occupation hold himself out as being a professional cotton merchant.

The remaining thing which a farmer might do to be considered a merchant is to become a dealer in goods. Although there was evidence which indicated that the appellee here had a good deal of knowledge, this is not the test. There is not one shred of evidence that appellee ever sold anyone’s cotton but his own. He was nothing more than an astute farmer selling his own product. We do not think this was sufficient to make him a dealer in goods.

The official comment to § 2-104 states in part as follows :

“This Article assumes that transactions between professionals in a given field require special and clear rules which may not apply to a casual or inexperienced seller or buyer. It thus adopts a policy of expressly stating rules applicable ‘between merchants’ and ‘as against a merchant’, wherever they are needed instead of making them depend upon the circumstances of each case as in the statutes cited above. This section lays the foundation of this policy by defining those who are to be regarded as professionals or ‘merchants’ and by stating when a transaction is deemed to be ‘between merchants’.” (Emphasis added).

Although a farmer might sell his cotton every year, we do not think that this should take him out of the category of a “casual seller” and place him in the category with “professionals.”

If indeed the statute of frauds has, as claimed, permitted an injustice, it is a matter which addresses itself to the legislature.

The judgment is due to be and is hereby

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

       This case was originally assigned to a justice formerly on this court. It has been reassigned to the writer who has listened to tape recordings of oral argument.