author: ALMON, Justice.

text:
    Gerald D. RANNELLS v. Ray GRAHAM, et al. AMERICAN COAL ENERGIES, INC., et al. v. Ray GRAHAM, et al.
    81-382, 81-383.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Rehearing Denied Sept. 30, 1983.

      Robert B. French, Jr., for Appellant Gerald D. Rannells, Fort Payne, Morris W. Savage and Charles R. Stephens of Bank-head, Savage & Stephens, Jasper, for appellant American Coal Energies, Inc. and Shirl McArthur.
    Harvey Jackson, Jr. of Tweedy, Jackson & Beech, Jasper and James K. Davis of Fite, Davis & Atkinson, Hamilton, for ap-pellees.
   ALMON, Justice.

These consolidated appeals involve a suit on a promissory note and a suretyship agreement. The trial court granted judgment on a jury verdict of $1,240,000.00 against the corporate maker of the note and $488,250.00 against the individual defendants who signed as sureties for the corporation. Iii addition to questions as to the validity of these instruments, the case presents questions regarding the pre-trial hearing and the instructions to the jury.

On December 3, 1974, Bama Coal Company, Inc., was organized as an Alabama corporation and began producing coal about the same time. The original incorporators were Ray Graham, Kenneth Watts, Dewel Emerson, T.C. Evans, and Douglas Tittle. Kenneth Watts later left the group and T.C. Evans bought his shares of stock. Dennis Mills later became a shareholder of the corporation. These individuals, other than Watts, are the plaintiff s/appellees in these consolidated appeals. They are residents of Marion County, which is the area where Bama Coal operated.

After Bama Coal was incorporated, the price of coal in the area dropped from forty dollars to eighteen or twenty dollars per ton, and the company began to experience financial difficulties. Dennis Mills came to the company to manage it and put it on sounder financial ground. Bama Coal never had a long-term contract but operated only on the spot market. The Kimberly-Clark paper mill in Childersburg bought some coal from Bama Coal, but stopped purchasing because of the high ash content of the coal.

In spite of Bama Coal’s difficulty in selling its coal, it attracted several prospective buyers interested in purchasing the company. One group put up an irrevocable letter of credit for $100,000.00 as earnest money for a proposed purchase of Bama Coal. That purchase fell through, however, and payment of the letter of credit was refused on demand.

In January of 1976, Gerald Rannells of Lake Oswega, Oregon, came to Alabama in search of coal properties to lease or buy. He heard that Bama Coal might be for sale, so he came to Marion County where he met Ray Graham and Paul Ray. The officers of Bama Coal showed Rannells their equipment, facilities, coal stockpile, and some financial information. They estimated that their coal stockpile was worth approximately $100,000.00.

Rannells was working with Shirl McAr-thur, of Huntington, Utah. McArthur was the primary owner of American Coal Company, which conducted a large underground coal mining operation in Utah. McArthur, Rannells, Kenneth Morgan, and Robert Harris began discussions in early 1975 relative to forming a corporation to purchase coal interests in the southeast. Harris was an attorney from Jeffersonville, Indiana, with coal investments in Kentucky, Tennessee, and West Virginia. Morgan was from Tennessee and had business with Harris investing in and developing coal mines. These four individuals formed American Coal Energies, Inc., the corporation which bought Bama Coal.

After Rannells first visited Bama Coal in January of 1976, McArthur sent two employees of his Utah company to look into the possibility of buying Bama Coal: Lavon Day, a mine safety and personnel manager, and John Parker, an accountant. They briefly met with officials of Bama Coal and inspected the Bama Coal premises, and they were given a list of Bama Coal’s accounts payable totalling approximately $267,-000.00. After about two days in Alabama, they returned to Utah and reported to Mc-Arthur.

The parties reached an agreement to sell the stock of Bama Coal Company to American Coal Energies, Inc. A written contract, promissory note, bill of sale, and suretyship agreement were prepared as evidence of this agreement. Kenneth Morgan, as president of American Coal Energies, signed the contract and promissory note, attested by Lavon Day, on February 23, 1976. All of the stockholders of Bama Coal signed the contract as sellers. The contract and note provided, among other things, that the shares of stock in Bama Coal Company would be transferred to American Coal Energies for the sum of $810,000.00, which was to be paid according to the terms of the promissory note. A portion of the purchase price was to be guaranteed by the shareholders of American Coal Energies, Inc. The accounts payable of Bama Coal were represented to be approximately $267,-000.00, against which a $100,000.00 credit for stockpiled coal was to be applied. An addendum, containing terms not material here, was later added to the contract.

On March 5, 1976, the parties met at the law office of Vinson & Guyton in Hamilton, Alabama, to close the transaction. The Bama Coal stockholders and their attorney were present, as were Rannells, McArthur, Morgan, and J. Curtis, an attorney for American Coal Energies, Inc.; Harris was not present. Rannells, McArthur, and Morgan signed the suretyship agreement. At trial they asserted that they signed as sureties only on condition that Harris also sign, but there was evidence to the contrary, as will be explained below. Jerry Guyton, the attorney for Bama Coal, held the documents in escrow pending the signature by Harris of the suretyship agreement. There was evidence that McArthur told Rannells to obtain Harris’s signature.

Guyton testified that a few weeks later McArthur called him to learn if Harris had signed, and Guyton answered in the negative. Shortly thereafter, according to Guy-ton, Rannells came to his office and took the suretyship agreement. Rannells returned a few days later with a signature on the document that purported to be Harris’s. Rannells and McArthur disputed this version of events at trial, but the parties agreed that on April 8, 1976, Guyton delivered the documents, except for the surety-ship agreement, to Rannells, who signed a receipt for them. Guyton testified that he did not deliver a copy of the suretyship agreement to Rannells because, Rannells having brought the signed original to him, he assumed Rannells had made a copy to keep.

American Coal Energies took the books of Bama Coal to a new office within a few days of the March 5 closing and John Parker began verifying the accounts payable. He arrived at a figure of $388,000.00. Furthermore, the bank on which the letter of credit was drawn refused to honor it, and American Coal Energies was unable to sell the coal stockpile. American Coal Energies made one payment of $10,000.00 on the amount due under the contract and note.

The former stockholders of Bama Coal filed this suit on January 12, 1979. The complaint sought $810,000.00 plus interest and attorneys’ fees from American Coal Energies, Inc., and $325,000.00 (the amount secured under the suretyship agreement) from Rannells, McArthur, Harris, and Morgan. Default judgment was taken against Harris; Morgan was dismissed as a party when plaintiffs learned that he had died in a plane crash.' McArthur and American Coal Energies were represented by the same counsel throughout the pleading, trial and appeal of the ease. Rannells was and is represented by separate counsel.

Several continuances were granted during the course of pleading and discovery. McArthur and American Coal Energies filed a counterclaim for fraudulent misrepresentation of the accounts payable and the value of the letter of credit and the coal stockpile. They filed motions for a pretrial conference on February 4, 1980, and March 30, 1981. McArthur and American Coal Energies state that they filed a third motion for pretrial conference on October 5, 1981, and that they have a copy of this motion marked “filed” even though it does not appear in the record.

Trial was set for November 9, 1981. On October 20, 1981, the attorneys for the plaintiffs and for McArthur and American Coal Energies appeared before the court for a pretrial conference. Because Rannells’s attorney was not present, the parties agreed to have an oral conference at a later date. On November 4, a motion for continuance by McArthur and American Coal Energies was filed; they state that they filed this motion on October 20. The court entered the following order on November 4, 1981:

“This cause coming on to be heard this date on a Motion for Continuance, and after considering the allegations of the petition and the knowledge of the facts known to this Court, the said Motion for Continuance is denied, based on the following facts known to the Court:
“On October 20, 1981, this ease, along with numerous other cases was on the pretrial docket set before this Court. Honorable Morris Savage, one of the attorneys for Defendants and both attorneys for the Plaintiffs was [sic] present in Court, and Honorable Morris Savage stated to the Court on that occasion that he would like to have an oral pretrial hearing at a different time because his co-counsel was not present in Court, and the Court made known to the Honorable Morris Savage that this was agreeable. Both of Plaintiffs’ attorneys stated in open court that they were agreeable to an oral pretrial hearing at any time.
“From October 20,1981, until this date, this Court has been available for a pretrial hearing and was and is still willing to have a pretrial hearing, but does not intend for this method or practice to be used in order to continue cases before this Court when cases have been pending for such long periods of time as has this case.
“The attorneys for the parties in this case are familiar with the practice of this Court at pretrial hearing, that unless there is an issue that needs resolving, the Court announces the cases set for trial and if any issues need to be formulated at a later date, it is so done. Neither of the attorneys for the parties announced such problems at the pretrial hearing of this case, and other cases on October 20, 1981, but simply stated that they wished to have an oral pretrial conference on Friday, November 6, 1981, at 10 A.M. at the Courthouse in Hamilton, Alabama.”

The trial court held the pretrial conference on Friday, November 6, with attorneys for all of the parties present, and entered a pretrial order. The case was called for trial on Monday, November 9, and the parties announced ready. A jury was selected and the trial of the case began. At the close of plaintiffs’ evidence the defendants filed motions for directed verdict, which the trial court denied. At the close of all the evidence, the plaintiffs and McArthur and American Coal Energies filed motions for directed verdicts, which were denied.

The jury returned a verdict in favor of the plaintiffs against American Coal Energies in the amount of $1,240,000.00 and in favor of the plaintiffs against McArthur and Rannells in the amount of $488,250.00. The trial court entered judgment on the verdict. The defendants filed motions for judgment notwithstanding the verdict, or in the alternative, for new trial. Following hearing and argument on these motions, the trial court denied them, and defendants appealed.

McArthur and American Coal Energies raise the following issues:

“I. Whether the trial court erred in failing to respond to timely written notice by the attorney for the defendants, by not directing and requiring the attorneys for the parties to appear before it at least 20 days before the case was set for trial for the holding of a pretrial conference.
“II. Whether a suretyship agreement, whose partial execution, and delivery was expressly conditioned upon execution by all four sureties, was valid when delivered without being executed by all four sureties.
“HI. Whether the trial court erred in allowing the witness Harry Green to testify as to reasonable attorneys fees on the promissory note and suretyship agreement.
“IV. Whether the trial court erred, when reading plaintiffs’ written requested charges to the jury, by identifying those charges as being requested by the plaintiffs, and in failing to incorporate the requested written instructions into the body of the charge.
“V. Whether the trial court erred in giving certain of the plaintiffs’ written requested charges.
“VI. Whether the trial court erred in denying the defendants’ motions for directed verdict at the close of the plaintiffs’ evidence and at the close of all the evidence.”

Rannells principally argues issues going to the sufficiency of the evidence, but he also takes issue with the fact that the trial court read the plaintiffs’ requested instructions pertaining to the counterclaim without informing the jury that the instructions applied only to the counterclaim of McArthur and American Coal Energies.

Rule 16 of the Alabama Rules of Civil Procedure (A.R.Civ.P.) reads in part:

“In any action the court may of its own motion, or shall on timely written notice by any party to the cause, direct and require the attorneys for the parties to appear before it, at least 20 days before the case is set for trial, for a conference to consider and determine [specified matters].”

The appellants contend that the mandatory wording of this rule requires reversal for the trial court’s failure to continue the case until a pre-trial conference was conducted with all parties represented at least twenty days before trial. Our inspection of the record leads to the conclusion that the trial court is not due to be reversed on this ground, chiefly because the appellants did not present substantial reasons for delay to the trial court and have not demonstrated any impediment to their defense resulting from the manner in which the trial court held the pre-trial conference.

When the case was called for pre-trial conference on October 20, 1981, at the regularly scheduled conference twenty days before trial was scheduled to begin, the attorney for McArthur and American Coal Energies requested that the pre-trial conference be held at a later time. There is no indication that he conditioned this request on a continuance of the trial or even that he requested a continuance at that time. He states in brief that he presented his motion for continuance at that time, but elsewhere in brief he states that these defendants filed their motion for continuance on November 4, 1981, and the face of the motion reflects this filing date. In any event, the motion was argued before the court on November 4, and the court entered the above-quoted order on that date.

The court’s order states that “From October 20, 1981, until this date, this Court has been available for a pretrial hearing,” implying that the defendants had not sought to reschedule the pretrial conference as agreed at the scheduled conference, but had pursued instead their attempt to secure a continuance. The court further stated that “Neither of the attorneys for the parties announced such problems [as to issues that needed resolving or formulating]” at the October 20 hearing. We agree that the continuance was requested without raising specific issues which needed discussion at pre-trial conference. We do not wish to imply that parties requesting a pre-trial conference must show specific reasons why one should be held. We only affirm that under the circumstances of this case, as discussed below, the trial court did not err in refusing to grant a continuance for a pretrial conference.

The case had been pending for over two years and nine months, having been filed in January 1979. Plaintiffs were suing on the note and the suretyship agreement. Defendants raised the defenses and the counterclaim regarding fraud and invalidity of the instruments which introduced complexity into the case. When the case came on for trial on November 9, 1981, all parties announced ready. Plaintiffs put on their case in chief through the testimony of Jerry Guyton, the plaintiffs’ attorney at the closing, and Dewel Emerson, one of the plaintiffs. Clearly these were not surprise witnesses and their testimony brought out facts to be anticipated by virtue of allegations made in the complaint and the defense to the counterclaim. The only exhibits offered by plaintiffs were documents of which defendants had reason to be aware, and the defendants did not object to any of them. Plaintiffs put Ray Graham and Dennis Mills on the stand to provide rebuttal evidence; again, these two parties were principals in the events.

The only witness regarding whom the appellants make any claim of surprise was Harry Green, a practicing attorney in Hamilton, where the trial was held. Plaintiffs had asked Guyton what he regarded as a reasonable attorney’s fee — both the note and the suretyship agreement allowed for expenses of collection, including a reasonable attorney’s fee, in the event of default. Defendants objected to Guyton’s testifying as to such fees because of his connection to the case, and the court sustained the objection. After Guyton and Emerson finished testifying, plaintiffs put Harry Green on the stand. Defendants objected to his giving his opinion as to a reasonable attorney’s fee, not on the ground of surprise or failure to specify Green as an expert at the pre-trial conference, but on the ground that Green was not properly qualified to give an opinion as to a reasonable attorney’s fee for the collection of such a large note and surety-ship agreement. We shall deal with the merits of this objection below. Suffice it to say here that appellants have shown no harmful error in the trial court’s action regarding the pre-trial conference and the motion for continuance.

Regarding their second issue, McAr-thur and American Coal Energies cite a long line of cases, beginning with Tindal v. Bright, 1 Minor 103 (Ala.1823), holding that sureties who sign on condition that another sign as co-surety are not bound if the co-surety does not sign. O'Neal v. Turner, 230 Ala. 24, 158 So. 801 (1935); Birmingham News Co. v. Moseley, 225 Ala. 45, 141 So. 689; White Sewing Machine Co. v. Saxon, 121 Ala. 399, 25 So. 784 (1898); Smith, Stewart & Co. v. Kirkland, 81 Ala. 345, 1 So. 276 (1886); Guild v. Thomas, 54 Ala. 414 (1875); Bibb v. Reid, 3 Ala. 88 (1841). They contend, as does Rannells, that McArthur, Rannells, and Morgan signed the suretyship agreement on condition that Harris also sign, and that because there was no evidence that Harris signed the agreement, McArthur and Rannells cannot be held liable.

The plaintiffs do not argue with the above-cited proposition of law, but state that the jury could have found under the evidence either that McArthur and the others did not condition their signature on that of Harris or that Harris did in fact sign. For the former assertion, they point to testimony that McArthur’s attorney said to him, “You know if you sign you’ll be liable,” to which McArthur answered, “I’m aware of that,” and signed the agreement. For the latter assertion, the appellees point to Guyton’s testimony that Rannells picked up the suretyship agreement from his office and brought it back with a signature purporting to be that of Harris.

While we agree generally with the plaintiffs’ argument, we find an even more telling circumstance supporting the jury verdict. In Smith, Stewart & Co. v. Kirkland, supra, the elder Justice Somerville, writing for the Court, noted two modifications of the rule that a surety is not liable where an instrument is delivered in violation of

“the express condition that other named persons should join as sureties in its execution prior to such delivery: ... (1). It does not apply to commercial paper which has come into the hands of a bona fide purchaser before maturity, who is without notice of the condition [citations omitted]. (2). It does not apply where the surety, having knowledge or notice of the delivery of the bond, suffers the principal to act under it to the prejudice of the obligee, so as to waive the condition, and thus estop the surety from insisting on the defense.-Wright v. Lang, 66 Ala. 389.”

Id., 81 Ala. at 350-351, 1 So. 276.

Clearly, the second modification or exception to the rule applies under the undisputed facts of this case. While Guyton was holding the executed documents in escrow, the sureties suffered the principal (American Coal Energies) to take over the operation of Bama Coal. They continued to allow American Coal Energies to operate Bama Coal, to the prejudice of the obligees (plaintiffs), after Guyton delivered to Ran-nells the executed documents transferring ownership of Bama Coal to American Coal Energies. The trial court instructed the jury on essentially this ground:

“Now, if you find that at the time they signed this agreement, they knew that Robert Harris was not going to sign this agreement, or if you find that after they learned that Robert Harris would not sign it, they did not call this to the attention of the plaintiffs within a reasonable time and went ahead and operated as if the other named individual Robert Harris had signed the agreement, then they would be estopped to assert the defense of their signature being conditioned upon Robert Harris signing that instrument.”

There was testimony regarding disputes among the directors of American Coal Energies which would support a finding that McArthur and Rannells knew, either before or shortly after the signing, that Robert Harris would not sign. The record thus supports a finding that McArthur and Ran-nells are estopped from asserting that their signatures on the suretyship agreement were conditional.

As to the issue of Harry Green’s qualification to testify as to a reasonable attorney’s fee, we find no merit in appellants’ contention. They assert that due to his short time in the practice of law and the fact that he had never collected on a note in excess of $5,000.00, nor, apparently, on any suretyship agreement, he was not qualified to testify as to a reasonable attorney’s fee in this case. The trial court overruled appellants’ objections on these grounds and allowed Green to testify. He stated that a fee of fifteen percent would be reasonable.

Appellants cite Hutchins v. Humble Oil and Refining Co., 161 S.W.2d 571 (Tex.Civ.App.1942), for the proposition that the mere fact that a person belongs to the profession or calling to which the subject matter relates is not enough; he must further show special knowledge as to the very question on which he proposes to give an opinion. We think the proposition sound with regard to complex, specialized, or technical matters. In Hutchins, the expert, a geologist, was asked a question relating to oil drainage, an area in which he apparently had no training or experience. Appellants seek to take the principle too far, however; a reasonable amount which an attorney would charge, even for a substantial commercial collection case such as this one, is not such an esoteric matter that a young attorney without extensive experience is unqualified to have an opinion on the subject. Indeed, appellants have scarcely argued that the amount to which he testified, fifteen per cent of the value of the instrument, was so excessive as to show prejudicial error.

We follow the general rule that the trial court has the discretion whether or not to allow a particular witness to testify as an expert, Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974), and find no abuse of that discretion in this case.

We next address the issues regarding the trial court’s charge to the jury. The first is the contention of McArthur and American Coal Energies that the trial court erred to reversal by identifying the plaintiffs’ requested charges as such and in failing to incorporate the requested instructions into the body of the charge. Rule 51, A.R. Civ.P., provides that “[tjhose requests marked ‘given’ shall be read to the jury without reference as to which party filed the request.” The committee comments to that rule quote a Minnesota case stating that a requested charge “should preferably be incorporated in the appropriate part of the body of the charge so as not to destroy its symmetry.” Carlson v. Sanitary Farm Dairies, 200 Minn. 177, 273 N.W. 665 (1937).

Appellants cite Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975); Park Supply Co. v. Sunki, 386 So.2d 462 (Ala.Civ.App.1980), cert. denied, 386 So.2d 466 (Ala.1980); and Hogan v. Alabama Power Co., 351 So.2d 1378 (Ala.Civ.App.1977), cert. denied, 351 So.2d 1388 (Ala.1980). None of these cases, however, confronts the issue squarely. In Tatum, supra, the Court observed that the trial court followed Rule 51 by not referring to which party requested the given instructions and commended the trial court for incorporating the written instructions into the body of the charge. In Park Supply Co., supra, the Court of Civil Appeals reversed because the trial court emphasized an erroneous written requested charge which contradicted a correct portion of the oral charge. While two of the circumstances of emphasis were the trial judge’s identification of the charge as requested by the defendant and the failure to incorporate it into the body of the charge, most of the emphasis stemmed from the fact that the trial court called the jury back in when it was pointed out that the trial court had erroneously sent the written requested charges into the jury room. In further instructing the jury, the court again read the erroneous, prejudicial instruction.

In Hogan, supra, the Court of Civil Appeals affirmed, even though the trial court had identified charges as requested by the plaintiff, because

“in this instance, we will not declare that the trial court’s action in stating to the jury which party requested which charge was so prejudicial as to constitute reversible error. Furthermore, we would point out that Hogan did not object to the trial court’s labeling the written charges which were given as being requested by one party or the other until he filed his brief, hence his objection was made too late.”

Id., 351 So.2d at 1386. We note in the same vein the more recent case of Alabama City Bank of Gadsden v. Vaughn, 413 So.2d 1053, 1056 (Ala.1982), wherein this Court observed,

“While it is true that Rule 51, ARCP, very plainly provides ‘[tjhose requests marked “given” shall be read to the jury without reference as to which party filed the request,’ and we note that its violation could constitute reversal, depending upon the facts of each case, it is also true that the bank once again did not timely object to the trial court’s labeling of the written charges as per Rule 51, ARCP.” (Emphasis added.)

In this ease the appellants objected to the trial court’s identifying the plaintiffs’ charges as being requested by the plaintiffs, so we address the question of whether this deviation from proper procedure was so prejudicial as to require reversal.

The court gave its oral charge, then plaintiffs’ requested instructions, then Ran-nells’s requested instructions, and then Mc-Arthur’s requested instructions. At the outset of each of these groups of instructions the court simply said “Now, the plaintiff [or “the defendant Gerald Rannells” or “the defendant Shirl McArthur”] has requested that I give some charges to you which also state correct propositions of law and I’ll read them to you.” At the end of its reading of the written requested charges the trial court stated, “Of course, you are to take these charges along with the general charge that I gave you.” Thus, there was no emphasis on the written requested charges, as there was in Park Supply Co. v. Sunki, supra, other than the failure to incorporate the charges into the body of the oral charge without identifying them. We are not able to say that this worked such a prejudice in itself to the defendants as to require reversal.

Nor are the charges themselves erroneous as McArthur and Rannells claim. We shall respond to McArthur’s objections first.

McArthur argues that the trial court erred in giving plaintiffs’ written requested charges 11, 12, 13, 14, 15, and 16. These charges relate to affirmance of a contract after discovery of fraudulent inducement or breach. McArthur argues first that each of these charges was abstract, without being hypothesized on the evidence or instructing the jury of its relation to the issues being litigated. He cites Bagley v. Grime, 283 Ala. 688, 220 So.2d 876 (Ala.1969), and American Fire and Casualty, Inc. v. Bryan, 379 So.2d 605 (Ala.Civ.App.1979), as holding that such instructions are erroneous. In these two cases this Court affirmed the refusal of charges — in Bagley, on the ground that a charge “which merely states a general proposition of law without being hypothesized upon evidence, or which does not instruct the jury of its relation to the issues being litigated, may be refused without error.” Id., 283 Ala. at 694, 220 So.2d 876, citing cases.

It is a different matter to reverse a trial court for giving requested charges attacked as being abstract, especially in view of the practice under Rule 51 of reviewing the written charges in the context of the charge as a whole:

“Stated otherwise, we will review alleged error in the giving of a written requested charge in the same context as if such charge were a part of the oral charge; and, as we have stated many times, where the objected to portion of an oral charge is misleading, abstract, or incomplete, we will adjudge error to reverse only if we conclude that prejudice resulted from the giving of such charge in light of the entire instruction.” (Citation omitted.)

Alabama Power Co. v. Tatum, supra, 293 Ala. at 505, 306 So.2d 251.

The trial court, in its oral charge, instructed the jury as to the appellants’ fraud defense. The charges to which appellants objected variously state the principle that the right to rescind or avoid a contract obtained by fraud may be waived if the party does what amounts to a recognition of the contract after discovery of the fraud. The plaintiffs included statements relating the principles of law to the facts of the case with some of these charges, but the trial court did not read these statements. Nevertheless, the fraud issue was clearly joined and we do not see that the instructions were abstract or confusing in the context of the charge as a whole.

McArthur complains about the statement in charge 13, that to rescind a contract on account of fraud, a party must promptly disaffirm and return or offer to return the consideration. He claims this is error for failure to instruct on impracticality of returning the consideration or lack of necessity of returning valueless consideration, citing Standard Tilton Milling Co. v. Mixon, 243 Ala. 309, 9 So.2d 911 (1942). This argument overlooks the fact that there was no evidence of any attempt to disaf-firm, with or without an effort to return the consideration. Moreover, Rannells was still trying to collect on the letter of credit at the time of trial. While there was some dispute as to the value of this letter and of the coal stockpile, there was no evidence justifying an instruction on impracticality of return because either could have been returned to the plaintiffs if the appellants had sought to avoid the contract on the basis of fraud. Similarly with the Bama Coal equipment: it was repossessed, but not until well after appellants had notice of the alleged fraud and had tried to pay off the Bama Coal debts, thus affirming the transaction.

Finally, McArthur challenges the instructions as requiring the American Coal Energies group to take affirmative action to rescind before they could raise the defense of fraud. He states that discovery of the fraud subsequent to the original treatment of the contract as being in force and effect would be a good ground of defense but precluded by these instructions. The record clearly shows, however, that the American Coal Energies group knew the facts constituting the alleged fraud within a month or two of the March 1976 purchase. Plaintiffs filed suit in January of 1979. This allegation of error has no merit.

Rannells complains that the plaintiffs submitted the above instructions as charges to the defendants’ counterclaim but the trial court did not submit them as such nor inform the jury that Rannells had not filed a counterclaim. The charges related equally to Rannells’s fraud defense to the suit on the note and suretyship agreement, so this presents no error.

McArthur and American Coal Energies argue that their motion for directed verdict should have been granted because the promissory note defines “default” as requiring written notice that a payment is 30 days past due and plaintiffs proved no such written notice. They also argue that the suretyship agreement required a demand for payment and none of the plaintiffs made such demand. These arguments carry no weight when the evidence showed that the only payment made on the note was in May 1976 and the plaintiffs attempted to secure payment up until they filed suit in January 1979. There was evidence that McArthur told the plaintiffs that if they did not file suit he would pay them soon. The purpose of these provisions requiring notice of default and demand for payment was served, and appellants cannot escape liability on this ground.

Rannells similarly argues that his motion for directed verdict should have been granted because the plaintiffs did not present a prima facie case. He claims that the plaintiffs did not prove transfer of ownership of Bama Coal stock or assets. In the face of proof that American Coal Energies treated these items as its own, this argument is specious. Rannells also argues that the trial court should have granted his motion for new trial because the verdict was against the great weight and preponderance of the evidence. As the above discussion shows, there was conflicting evidence; the evidence in favor of the plaintiffs was sufficient to support the jury’s verdict.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . The certificate of service at the end of the motion bears the date “October 4, 1981,” but the motion is marked “filed 11 — 4-81.” Counsel does not claim that he actually served the motion on October 4.


source: Caselaw Access Project

license: Public Domain

text:
    Herman H. COHORST v. UNITED STATES STEEL CORPORATION and United Steelworkers of America.
    81-923.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Rehearing Denied Sept. 30, 1983.

      Peter J. Meredith and Timothy C. Gann, Birmingham, for appellant.
    William C. Knight, Jr. and William F. Murray, Jr. for Thomas, Taliaferro, For-man, Burr & Murray, Birmingham, for ap-pellee U.S. Steel Corp.
    Jerome A. Cooper for Cooper, Mitch & Crawford, Birmingham and Bernard Klei-man, Gen. Counsel, Chicago, Ill., and Carl B. Frankel, Assoc. Gen. Counsel, Pittsburgh, Pa., for United Steelworkers of America.
   ALMON, Justice.

This is an appeal from a summary judgment which dismissed both the plaintiff’s claim against his former employer for pension benefits and his claim against his union for breach of its duty of fair representation.

In 1937 Herman H. Cohorst became an employee of United States Steel Corporation (the Company) and a member of the United Steelworkers of America (the Union). The Company discharged Cohorst for absenteeism in 1957, but a successful arbitration award ordered Cohorst’s reinstatement as a tandem mill roller and his recovery of backpay. As a result of sickness, Cohorst stopped working for the Company on March 18,1960, but the Company continued to carry Cohorst on the employment rolls for two additional years until termination on March 18, 1962.

Cohorst’s status on the termination date was in dispute. He contended that he was permanently laid off on March 18, 1962, after reporting to work with a doctor’s return-to-work slip. The Company, however, contended that Cohorst was discharged on March 18,1962, for “absence without proper cause” based upon his unexplained absence for over two years on disability.

On January 30, 1964, the Union reopened Cohorst’s 1957 grievance, seeking his return to work and additional backpay. On this date, Cohorst, the Company, and the Union executed a written release which granted Cohorst $1,000.00 in settlement of his grievance “for all purposes” and which relieved the Company and the Union “of any further liability” to Cohorst.

In the years following the 1964 release, Cohorst contacted several Company and Union officials concerning his eligibility for the Company’s deferred vested retirement pension. Upon the Company’s refusal to grant the requested pension benefits, Co-horst sued United States Steel Corporation on May 13, 1980. Cohorst then added the United Steelworkers of America as a party defendant on September 4, 1981, claiming that the Union breached its duty of fair representation by failing to invoke the grievance/arbitration procedure mandated by the pension plan.

The trial court entered summary judgment in favor of both the Company and the Union on the following grounds: i) Co-horst’s execution of a valid release in favor of the Company and the Union; ii) Co-horst’s noncompliance with the statute of limitations applicable to the Union; and iii) Cohorst’s noncompliance with the appeals procedure of the pension plan. Upon denial of his motion to vacate this judgment, Co-horst appeals.

We agree with the trial court’s determination that as a matter of law the 1964 settlement agreement was unambiguous and included within its terms a release of all pension claims which Cohorst might assert against the Company.

Although Cohorst contends that this determination involved the resolution of disputed factual issues outside the province of summary judgment procedure, we have consistently held that the court, not the jury, must first ascertain whether a contract is ambiguous and then must determine the meaning of the contract when its terms are clear and certain. C.F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 649, 320 So.2d 657, 661 (1975) (on denial of application for rehearing) (citing Air Conditioning Engineers, Inc. v. Small, 259 Ala. 171, 176, 65 So.2d 698, 703 (1953)).

The terms of the agreement provided that payment of $1,000.00 to Cohorst constituted settlement of the 1964 grievance “for all purposes” and that such payment relieved the Company “of any further liability” to Cohorst. Because the trial court found as a matter of law that this language was unambiguous, no factual disputes remained to be resolved. The court could only look to the wording of the release to determine its meaning:

“In the absence of fraud, a release supported by a valuable consideration, unambiguous in meaning, will be given effect according to the intention of the parties to be judged from what appears within the four corners of the instrument itself and parol evidence is not admissible to impeach it or vary its terms.”

Conley v. Harry J. Whelchel Co., 410 So.2d 14, 15 (Ala.1982) (citing Miles v. Barrett, 223 Ala. 293, 293, 134 So. 661, 661-62 (1931)).

The trial court properly concluded that the terms of the 1964 settlement agreement unambiguously evidenced the parties’ intent to include pension claims within the release of liability.

We also agree with the trial court’s determination that as a matter of law the Union did not breach its duty of fair representation to Cohorst.

The United States Supreme Court, in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), held that the National Labor Relations Act, which grants unions the exclusive right to represent all members of a collective bargaining unit, also imposes upon unions an implied duty “to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” 386 U.S. at 177, 87 S.Ct. at 910 (citations omitted). Our Court, in International Brotherhood of Electrical Workers v. Powell, 370 So.2d 987 (Ala.1979), recognized that this federally created cause of action “requires that union conduct be perfunctory, arbitrary, discriminatory or in bad faith before it is determined that the union has breached the duty of fair representation.” Id. at 993.

As Vaca makes clear, the mere fact that the Union refused to file Cohorst’s grievance concerning pension benefits does not amount to perfunctory or arbitrary treatment. 386 U.S. at 191, 87 S.Ct. at 917. A breach of the duty of fair representation, moreover, is not established merely by proof that the underlying grievance was meritorious. 386 U.S. at 192-93, 87 S.Ct. at 917-18. Thus, any attempts by Cohorst to prove either the ineffectiveness of the release or his eligibility for pension benefits would not imply a breach of the Union’s duty of fair representation absent a showing of arbitrary or capricious conduct on the part of the Union.

After a careful review of the entire record, we conclude that the Union’s actions in this case were a legitimate exercise of discretion on behalf of Cohorst. Factors that we consider significant in this decision are: the Union’s good faith belief that the settlement agreement released the Company from any liability for Cohorst’s pension claims; the Union’s good faith belief that the uncertain status of Cohorst at the termination of his employment rendered his deferred pension eligibility nonmeritorious; and the Union’s meetings with Cohorst and subsequent investigations of his eligibility for pension benefits.

In view of our decision it is unnecessary to discuss the remaining issues of exhaustion of pension agreement remedies and the statute of limitations except to observe that, in U.A.W. v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), the United States Supreme Court, addressing a claim under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1970), invited state courts to determine the appropriate statute of limitations.

We accepted that invitation in International Brotherhood of Electrical Workers v. Powell, 370 So.2d 987 (Ala.1979), and following the Eighth Circuit Court of Appeals in Butler v. Teamsters Local 823, 514 F.2d 442, cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975), adopted the contract statute of limitations in such cases because the two claims are inextricably interdependent.

The United States Supreme Court has now reversed its former decisions in Del-Costello v. International Brotherhood of Teamsters, - U.S. -, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), holding that it would borrow a federal six-month statute found in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The six-month statute now governs fair representation claims when joined with a claim against the employer for breach of the collective bargaining agreement.

DelCostello, supra, thus overrules that portion of the Powell, supra, decision dealing with the statute of limitations.

The trial court decision granting summary judgment on behalf of United States Steel Corporation and the United Steelworkers of America is affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . According to company employment records, the alleged discharge was not effective until March 13, 1963.

      . The release provides in pertinent part:
      “The Union’s representative and Management’s representative agreed that this case should be settled by the payment by the Company to Grievant Herman H. Cohorst the further sum of $1,000.00 less normal deductions. Grievant understood and agreed that payment to him of the above amount constituted settlement of this grievance for all purposes including compliance with Board of Arbitration Case T-572, and that such payment relieves the Company and the Union of any further liability to grievant.”

      . Under the plan, an employee who is either laid off or terminated as a result of a permanent factory shutdown for a period of two years following 15 years of consecutive service may receive the deferred vested pension beginning at age 40. According to the trial court, Cohorst would have received the vested pension on March 18, 1964, if at that time he was in a layoff status and his union had pursued the grievance procedure outlined in the pension plan.


text:
    Sam M. KELLEY, etc. v. Bessie Gilmore ENGLISH, et al.
    81-1005.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Rehearing Denied Sept. 30, 1983.

      William D. Melton, Evergreen, and Paul D. Owens, Jr., Brewton, for appellant.
    John Thaddeus Moore of Otts & Moore, Brewton, for appellees.
   ALMON, Justice.

This is an appeal from, and an alternative petition for mandamus regarding, orders dismissing a complaint and striking an amended complaint. Margaret K. Gilmore filed a contest to the will of her late husband Ollie D. Gilmore in the Probate Court of Escambia County and had it transferred to circuit court. The circuit court granted the proponents’ motion to dismiss for lack of subject matter jurisdiction, ruling that the contestant had not complied with the statutes granting the circuit court jurisdiction over will contests.

Ollie D. Gilmore died on March 27, 1981. On April 10, 1981, Fred Gilmore and Bessie Gilmore English petitioned for the probate of his purported will, which named them as executors. The will left to Gilmore’s widow Margaret a life estate in their residence and the contents thereof, with the residue and remainder going to his brothers Fred and Harvey Gilmore and his sister Bessie Gilmore English (the proponents). The probate court admitted this will to probate on May 6, 1981.

On October 16, 1981, Margaret Gilmore filed a contest of the will in the probate court, along with a demand that the contest be transferred to circuit court. The probate court entered an order on the same date transferring the contest to circuit court. The circuit court case action summary shows the probate file transferred to circuit court on October 20, 1981. Each proponent received a summons, but the record does not include a complaint filed in the circuit court, so it appears that the summons was accompanied by the contest filed in probate court. The proponents filed an answer on November 12, 1981.

The parties filed various motions and pursued discovery. On June 4,1982, the proponents filed a motion to dismiss the complaint on the following grounds:

“That this Court has no jurisdiction over this matter since contest of the Will of Ollie D. Gilmore was not instituted under Section 43-1-70 or under Section 43-1-79, Code of Alabama (1975). Section 43-1-70 authorizes a contest prior to Probate of the Will of a decedent. Section 43-1-79 authorizes a contest by filing a complaint in the Circuit Court within six months after the admission of the Will to Probate. Neither action was taken in this case.”

The circuit court granted this motion on July 19, 1981, dismissing the complaint.

Margaret Gilmore filed an amendment on July 29,1981, purporting to contest the will under § 43-1-79, Code 1975. The proponents filed a motion to strike this amend-merit on August 9, stating, inter alia, that “[t]he Amendment by Contestant is immaterial in that there is no Complaint validly in existence, and neither the Probate Court nor the Circuit Court of Escambia County, Alabama, has jurisdiction over any such Complaint.” The circuit court granted this motion on August 23, 1981. Margaret Gilmore filed notice of appeal to this Court on August 25. After the cause was submitted, Mrs. Gilmore died, and Sam M. Kelley, the administrator of her estate, was substituted as appellant.

Before submission of the appeal, Mrs. Gilmore filed an alternative petition for mandamus “so that there will be no question as to the appropriate vehicle for review” of the orders dismissing the complaint and striking the amendment. Because the order striking the amendment effectively ended the action, it was a final order and appeal is the proper method of review.

Code 1975, § 43-1-70 (now § 43-8-190), authorizes a contest in the court in which the will is offered for probate before the will is admitted to probate. Clearly Mrs. Gilmore did not file her contest within the terms of this section. Code 1975, § 43-1-79 (now § 43-8-199), provides:

“Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.”

Mr. Kelley claims that Mrs. Gilmore filed her contest within the terms of this section. He says that the circuit clerk docketed the contest, assigned a case number, issued summonses, and otherwise treated the case as properly filed. Mrs. Gilmore filed an affidavit by the clerk stating that “[t]he attached claim was filed in my office along with other papers on October 20, 1981.” One of her attorneys filed an affidavit stating that he personally delivered and filed the contest in the circuit court.

The proponents point out, however, that the pleading which Mrs. Gilmore regarded as a circuit court complaint bears the heading, “IN THE PROBATE COURT”, and was in fact first filed in the probate court. For all that appears from the record, it only reached the circuit court as part of the transfer of the probate file.

“A circuit court’s jurisdiction over a will contest is statutory and limited.” Forrester v. Putman, 409 So.2d 773, 775 (Ala.1982). See also Ex parte Stephens, 259 Ala. 361, 66 So.2d 901 (1953); Knox v. Paull, 95 Ala. 505, 11 So. 156 (1892). We find that Mrs. Gilmore did not properly file a contest in the circuit court so as to invoke jurisdiction under § 43-1-79. The circuit clerk’s treatment of the case could have resulted from an assumption that the contest was properly transferred from probate court and so cannot serve to contradict the face of the pleadings which show that the action was filed in probate court.

Mr. Kelley argues that the proponents are estopped from raising any lack of jurisdiction because they filed an answer and proceeded with discovery and other matters. This argument is answered by the fact that Rule 12(h)(3), A.R.Civ.P., requires the court to dismiss the action “[wjhenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter.” (Emphasis added.) See Forrester v. Putman, supra. The circuit court properly granted the proponents’ motion to dismiss.

Similarly, the circuit court acted correctly in granting the motion to strike the amendment to the complaint. Because there was no complaint filed in the circuit court, there was nothing to amend. The purported amendment came long after the expiration of the period when a complaint could'have been filed in the circuit court and so cannot attach jurisdiction where none previously existed.

The judgment is affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    FIRST BAPTIST CHURCH OF GRAYSON VALLEY, INC., a Corporation v. Samuel B. SHELL, Nationwide Bond, Inc., and Insurance Company of North America.
    82-88.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Rehearing Denied Sept. 30, 1983.
    Herbert W. Stone, Birmingham, for appellant.
    Gould H.K. Blair, Birmingham, for appel-lee Nationwide Bond, Inc.
    William C. Wood, Norman, Fitzpatrick & Wood, Birmingham, for appellee Insurance Co. of North America.
   EMBRY, Justice.

First Baptist Church of Grayson Valley, Inc., sued Shell and Nationwide, Inc., for damages on account of fraudulent representations made by Shell in connection with the issuance and sale of bonds of the Church. The trial resulted in a verdict against Shell in the amount of $62,000 but the jury expressly exonerated Nationwide.

Insurance Company of North America is surety on a statutory securities dealer bond with Nationwide, a registered securities dealer, the principal. The condition of that bond pertinent to this case is:

“[If] said principal ... shall promptly and faithfully pay any judgment rendered against it .. . for any fraud or misrepresentation in the sale of securities sold or dealt in by said principal under the above-mentioned registration ... then this obligation shall be null and void... . ”

Judgment was entered on the verdict in favor of Nationwide on 11 February 1982. On 21 April 1982 the Church filed what it denominated: “Motion to Enforce Liability of Surety” seeking to compel payment of $10,000 under the above-referenced bond as well as $25,000 under a blanket bond indemnifying Nationwide against loss due to the fraud of any employee.

On 15 November 1982, following various additional filings by the Church, and after a hearing, the trial court entered a statement of the proceedings had in connection with the Church’s post-judgment motion. The statement included the following:

“[T]his court has undertaken to set forth the question urged by the plaintiff-appellant as follows:
“ ‘Does Section 8-6-3(c) of Code of Alabama 1975, make the Insurance Company of North America, and/or Nationwide Bond, Inc. liable to the plaintiff under the provisions and conditions of their bond (Exhibit 1 of plaintiff-appellant’s “Motion to Enforce Liability of Surety”) though the jury has found as a question and matter of fact, that the defendant, Samuel B. Shell, was not acting in the line and scope of his employment or agency for either Nationwide Bond, Inc., nor Insurance Company of North America, at the time and place of the events made the basis of the suit, Case No. CV 80-01782?’ ”

The Church urges that its motion is a proper one under Rule 65.1, ARCP. In that regard, it is laboring under a misconception of the law as well as the nature of the proceedings in this case. Insurance Company of North America is only liable for payment of any judgment that Nationwide should fail to pay. There is no judgment against Nationwide. Moreover, the allegations of the motion, if anything, would be more properly characterized as stating an original cause of action against Nationwide and Insurance Company of North America.

Further, the order overruling, denying, and dismissing the motion is not a final appealable judgment. If indeed it were, then it was filed months after the thirty days had expired for the filing of a Rule 59, ARCP, motion for new trial as to Nationwide and, of course, could have not affected Insurance Company of North America, a nonparty in the action for fraud. It follows that even if the order disposing of the motion be an appealable one, the notice of appeal was not timely filed (Rule 4, ARAP) and this court is without jurisdiction. Therefore for the reasons stated this appeal is due to be and is hereby dismissed.

APPEAL DISMISSED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: BEATTY, Justice.

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC., a Corporation v. Luretta B. LIVINGSTON.
    82-460.
    Supreme Court of Alabama.
    Sept. 2, 1983.
    Rehearing Denied Sept. 30, 1983.
    David E. Allred of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.

      J. Myron Smith and Theron 0. McDowell, Jr., Prattville, for appellee.
   BEATTY, Justice.

This is an appeal by defendant, Alabama Farm Bureau Mutual Casualty Insurance Company, Inc. (Farm Bureau), from a declaratory judgment which determined that an automobile insurance policy issued to plaintiff, Luretta B. Livingston, provided coverage to her while she was driving a pick-up truck belonging to her mother. We affirm.

On July 1, 1981, Hattie Willis’s pick-up truck, while being driven by her daughter, Luretta B. Livingston, collided with a motorcycle being driven by Warren Theodore Landrum, Jr. Landrum died as a result of the injuries he sustained in that accident. According to the complaint in this action, Livingston was named a third-party defendant in a separate action filed by the administratrix of the deceased Landrum’s estate against Nationwide Insurance Company in which it was alleged that Livingston was an uninsured motorist and that Nationwide Insurance Company was liable under other insurance policies for payment of uninsured motorist claims. Nationwide Insurance Company served a third-party complaint upon Livingston, demanding judgment against her for any sums for which it may become liable to the adminis-tratrix.

On July 1, 1981, Livingston was the named insured under an automobile insurance policy issued by Farm Bureau upon her 1979 Ford Mustang. She sought liability coverage from Farm Bureau under the “Insuring Agreement II — Non-Owned Automobiles” section of said policy, which provides:

“INSURING AGREEMENT II — NON-OWNED AUTOMOBILES
“If the named insured is a person or persons such insurance as afforded by this policy under Coverages A, B, C, C-l, C-2, D, D-l, D-2, E, F with respect to the automobile applies to the use of a non-owned private passenger or utility automobile by the named insured or a relative, and any other person or organization legally responsible for the use by the named insured or relative of an automobile not owned or hired by such other person or organization, if such non-owned automobile is used with the permission of the owner

Farm Bureau denied her coverage for the July 1, 1981, accident on the basis of the following exclusion:

“Insuring Agreement II does not apply:
“1. to a non-owned automobile (a) registered in the name of or owned by the named insured or a relative (b) hired by or furnished or available to the named insured or relative for frequent or regular use, ...” (Emphasis added.)

The term “relative” is defined in the policy as “a relative of the named insured who is a resident of the same household.”

On June 29, 1982, Livingston filed the action below, seeking a declaration of her rights under her insurance policy issued by Farm Bureau.

FACTS

The undisputed facts pertaining to Livingston’s residence and use of her mother’s pick-up truck on July 1, 1981, are the following:

Livingston had lived and worked as a teacher in Perry County, Alabama, for approximately two years prior to May 29, 1981. On May 29,1981, she moved to Pratt-ville, Alabama, where she temporarily “stayed” with her mother and step-father, Hattie and Stanley Willis, at Route 3, Box 334R, until a few days after the accident on July 1,1981. She testified that during that one-month period she spent some nights with a sister in Prattville and some nights with a sister in Montgomery.

During the period from late May to early July 1981, Livingston, her mother, and her step-father were remodeling a residence at 122 Railroad Street, into which Livingston intended to, and in fact did, move when the remodeling was completed.

Livingston had moved her furniture, some clothes, and some food from Perry County into 122 Railroad Street, and had electricity connected and a telephone installed there around June 9, 1981. Livingston first drove her mother’s pick-up truck to Perry County to pick up one load of her belongings. Mrs. Willis drove the truck back to Perry County to pick up the second (and last) load. Livingston did not drive the truck again until July 1, 1981, when, at her mother’s request, she drove to a building supply store to purchase sheetrock to be used in the remodeling of the 122 Railroad Street residence. (The record does not indicate whether the accident occurred before or after the sheetrock purchase.)

PROCEEDINGS BELOW

The trial court decreed on December 2, 1982, that “the Plaintiff, Luretta B. Livingston, is due coverages from the Defendant, Alabama Farm Bureau Mutual Casualty Insurance Company, Inc., under insurance policy number 1651446 for that certain motor vehicle accident in which Plaintiff was involved on July 1, 1981, which has been heretofore denied to Plaintiff by Defendant.” On December 14, 1982, Farm Bureau filed a “motion for new trial” with an “alternative motion to alter, amend, or vacate judgment,” both of which were subsequently denied.

Farm Bureau also filed on December 14, 1982, a “motion for findings of fact.” The trial court granted the motion and on January 28, 1983, amended its declaratory judgment accordingly. The pertinent findings of the court were that on July 1, 1981, Livingston’s residence with her mother “was temporary rather than permanent” in that she “was in the process of moving and had taken up temporary quarters with her mother and step-father .. . while she and others worked on renovating another dwelling place for her permanent occupancy”; that the mother, Hattie Willis, “regularly used her pick-up truck to go back and forth to work” although plaintiff “could have used the truck” if she had requested such use; and that Livingston had used the truck only twice — the first time to pick up furniture in Perry County and the second time on July 1, 1981, when the accident occurred.

Although the trial court in its decree did not specifically set forth its conclusions as to whether both conditions of the exclusion clause of the policy were unmet, or whether failure of only one of the conditions precluded operation of the exclusion clause, we see no error in the decree.

In Alabama Farm Bureau Mutual Casualty Ins. Co. v. Carswell, 374 So.2d 250 (Ala.1979), while construing identical policy language, this Court held that a jury instruction which in effect required the jury to find that a non-owned automobile was available “at all times” to the insured before it could find coverage was an erroneous instruction. The court noted:

“The term ‘frequent use’ has been defined to mean ‘an often repeated but irregular, casual or incidental use, as distinguished from a regular use.’ (citations omitted). Continental Casualty Co. v. Suttenfield, 236 F.2d 433 (5th Cir.1956).
“ ‘Regular use’ has been defined as a ‘principal use as distinguished from a casual or incidental use.’ 6C Appleman, Insurance Law and Practice § 4455 at 558 (Buckley ed. 1979).” 374 So.2d at 252.

In Alabama Farm Bureau Mutual Casualty Ins. Co. v. Preston, 287 Ala. 493, 497, 253 So.2d 4 (1971) (Maddox, J., concurring specially), also construing identical language, it was stated, “The general purpose of the exclusion clause is to prevent a situation in which members of one family or household may have two or more automobiles which are used interchangeably but with only one particular automobile insured.” (Emphasis added.) Livingston used the truck once to haul a load of furniture and once to haul a load of sheetrock. There is no evidence in the record which points to Livingston’s having had the opportunity to use her mother’s truck interchangeably with her own Mustang, which was running and available for her use.

Since we would have agreed with the judgment of the trial court if it had been based only upon a conclusion that the non-owned pick-up truck was not furnished or available to Livingston for her frequent or regular use, it is unnecessary for us to address whether, under the facts of this case, Livingston was a “resident of the same household” as her mother on July 1, 1981.

For the reasons stated, the declaratory judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and SHORES, JJ., concur.


text:
    ALABAMA GAS CORPORATION v. AMERICAN FURNITURE GALLERIES, INC., et al. MCWANE, INC. v. AMERICAN FURNITURE GALLERIES, INC., et al.
    81-986, 81-987.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    Edward 0. Conerly and Jasper P. Juliano of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellant Alabama Gas Corp.
    Harry Cole of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Fournier J. Gale, III and Cathy S. Wright of Cabaniss, Johnston,, Gardner, Dumas & O’Neal, Birmingham, for appellant McWane, Inc.
    Philip H. Butler of Robison & Belser, Montgomery, and David M. Leonard of Hurt, Richardson, Garner, Todd & Caden-head, Atlanta, Ga., for appellees.
   BEATTY, Justice.

These appeals are from an order of the trial court granting plaintiffs’ motion for a new trial. We affirm.

Because of the nature of the issue before us, and our discussion thereon, we shall relate only those facts that relate to the ground upon which the new trial was granted, i.e., juror misconduct.

The action arose out of an explosion and fire in Montgomery in February 1979, allegedly due to the improper installation of a cast iron gas main. Alabama Gas Corporation was one of the defendants in the action, which was filed in Montgomery. T.I. Hawkins, Jr., was manager of the Montgomery district of Alabama Gas Corporation at the time of the explosion and also was the designated trial representative of the company throughout the trial.

The case was set for a jury trial. A venire of eighty-five members was furnished the parties. Michael D. Wilson was a member of this venire. The voir dire examination of the venire was conducted on March 1, 1982. During that examination, the trial court inquired whether any of the venire knew T.I. Hawkins, Jr. Wilson did not respond to this question. In due course he was selected as a member of the trial jury. Following the trial, the jury rendered a verdict for the defendants. Later it was disclosed that juror Wilson did in fact know Hawkins. His failure to respond to the question addressed to the venire was made a ground on plaintiff’s motion for a new trial. Following a hearing on that motion, during which both Hawkins and Wilson testified, the trial court granted the motion for a new trial, stating in relevant part:

“In determining that the Motion for New Trial should be granted, the Court is particularly interested in the evidence presented on Motion for New Trial.
“Based on such evidence, the Court finds that Juror Michael D. Wilson, failed to respond in the affirmative to the voir dire questions of the venire by the Court wherein the Court asked if any member of the venire knew T.I. Hawkins, Jr. The Court finds from the evidence that Juror Wilson did, in fact, know T.I. Hawkins, Jr., from having served with him on the Board of Deacons of the First Baptist Church of Montgomery for the year 1979. The evidence established on Motion for New Trial, that there were 45 members of the Board of Deacons which met monthly during the year, 1979.
“The failure of Juror Michael D. Wilson to answer correctly and truthfully the voir dire question aforementioned denied the Plaintiffs their right of having correct information to enable them to exercise their discretion wisely in the use of their peremptory strikes. Due to the availability of jurors and the number of parties involved in this action, the Court gave the parties some 85 jurors from which to select the trial jury of 12 and two alternate jurors.
“The Court, in the exercise of its discretion, finds that the lack of response to the question by Juror Michael D. Wilson resulted in probable prejudice to the Plaintiffs, especially in light of the juror’s testimony on Motion for New Trial to the effect that he had known T.I. Hawkins, Jr., from their having served together as deacons in the same church in 1979.
“The evidence presented on Motion for New Trial was that during the year that Juror Wilson and T.I. Hawkins, Jr., served together as deacons in their church, Hawkins was Vice Chairman of the Board of Deacons. The Court also finds significant that T.I. Hawkins, Jr., not only was a witness for the defense but was the designated trial representative of the Defendant, Alabama Gas Corporation, and, as such, was present in the Courtroom during the entire trial.”

The scope of review of this Court on such issues was stated in Martin v. Mansell, 357 So.2d 964 (Ala.1978), which followed Freeman v. Hall, 286 Ala. 161, 166-67, 238 So.2d 330, 335-36 (1970):

“We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant.... ”

Martin, supra, set out some of the factors to be considered by the trial court when determining whether probable prejudice resulted and by this Court in determining whether an abuse of discretion has occurred, such as: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the venireman’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about. In the perusal and application of these or other pertinent factors from case to case, we note, the question of prejudice is a matter primarily within the trial court’s discretion; absent a clear showing of an abuse of that discretion, its ruling on the matter will not be reversed. S.S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977); Norris v. Presley, 292 Ala. 155, 290 So.2d 643 (1974).

A review of the testimony taken at the hearing on the motion for a new trial shows that Wilson, the juror, recognized T.I. Hawkins, Jr., after he took the jury box and after the trial began. His knowledge of Hawkins was due to their association in the First Baptist Church in Montgomery. Wilson did not think it necessary to bring his recognition of Hawkins to the attention of anyone. It was brought out that during 1979 both Wilson and Hawkins served that church as deacons, a group comprised of 45 members, and that the church publication, “The Beacon,” featured Hawkins as a “deacon of the week,” and referred to his position as vice-chairman of the board of deacons. Wilson stated that at his own ordination as a deacon Hawkins had probably been present. He added that he did not often read “The Beacon,” but did remember that article about the deacon of the week. Wilson added that he considered a deacon-ship a position of trust and respect and would tend to believe a member of the Board of Deacons of First Baptist Church under oath.

Wilson’s testimony also established that, after the trial had concluded and the jury was dismissed, Wilson was standing in the hallway outside the courtroom with a small group of people which included a lawyer for one of the defendants. At that time some other people, including Hawkins, came up to them. Wilson related what transpired:

“A. As the group that Mr. Hawkins was in approached the group that I was in, I believe it was just Mr. Lamar, myself, if I remember correctly. When I left I said something to the effect to the group: Next time I am chosen for this or jury duty or something, I am going to say that I know everybody or something to that effect.
“Q. You did not say to Irving that you were going to — you did not say that directly to him?
“A. I don’t recall if I said it to him or to the group, but it was in reference to people such as yourself ... and other people who I sort of knew on a casual acquaintance or knew a face.
“Q. In the trial of this case, is Mr. Hawkins the only party in court or witness that you have served with your church?
“A. Yes.
“Q. And was Mr. Hawkins the person that sat with the attorneys during the whole trial for Alabama Gas Corporation?
“A. He either sat with the attorneys or he sat back where he is sitting now.
“Q. He was present during the whole trial?
“A. I believe so.”

Wilson also testified that his acquaintance with Hawkins had no impact on his decision as a juror. Mr. Hawkins testified that he and Wilson had no social life together. Hawkins moved to Birmingham in 1979 and did not recall seeing Wilson thereafter.

The defendants argue with force that the record fails to show probable prejudice, and that, moreover, Hawkins’s testimony was cumulative to that of several other witnesses.

The trial in this case took place between March 1, 1982, and March 14, 1982. The motion for a new trial was heard on July 2, 1982. The evidence showed that Wilson and Hawkins were associated in the government of their church for at least one year, and it is inferable that Hawkins was known to Wilson before that period of time. Under those facts, we cannot hold that the matter inquired about was temporally remote.

The question posed to the jury was not ambiguous. It simply asked if any member of the venire knew T.I. Hawkins, Jr. Wilson’s justification for not answering was to the effect that he did not put the name and the face together until later. Under the circumstances, Wilson’s inadvertence, neglect, or willfulness was a question for the trial court to resolve. Certainly we cannot state under these facts that the inquiry was immaterial. Hawkins was the designated trial representative of one of the corporate defendants and had been the manager of the gas company’s local district when the explosion took place. He was the alter ego of that defendant for the purpose of trial. Under those circumstances Wilson’s knowledge of Hawkins was a matter of importance to plaintiffs’ counsel for the purpose of jury selection. Perhaps the jur- or’s failure to- answer was unintentional. Nevertheless, if the failure to answer was prejudicial to the inquiring party, the result is the same as if it had been deliberate. Parties have the right to have questions answered truthfully so that they may exercise their discretion wisely in the use of their peremptory strikes, and that right is denied when a juror fails to answer correctly. Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969). And when the circumstances disclose that such a failure probably prejudiced the complaining party, in the trial court’s discretion, its grant of a new trial will not be reversed. It cannot be concluded from these circumstances that the trial court, as a matter of law, was wrong in finding probable prejudice. Accordingly, its order granting a new trial must be, and it is, affirmed.

AFFIRMED.

TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur.


author: SHORES, Justice.

text:
    GULF COAST FABRICATORS, INC. v. G.M. MOSLEY, etc.
    81-1042.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      Claude E. Patton of Bryant, MeKnight & Patton, Mobile, for appellant.
    James E. Atchison and Michael M. Davis of Hess, Atchison & Horne, Mobile, for ap-pellee.
   SHORES, Justice.

Defendant Gulf Coast Fabricators, Inc. (GCF), appeals from a judgment in favor of plaintiff G.M. Mosley, General Contractors, Inc. (Mosley), in an action for breach of contract. We affirm.

In March 1980, Mosley, an industrial construction firm, entered into an oral agreement with GCF to construct a one hundred foot addition to GCF’s existing plant facilities. Mosley also agreed to perform all necessary slab and foundation work for the new building.

GCF’s existing structure was a prefabricated building manufactured and sold by VARCO-PRUDEN. Mosley informed GCF that the new building, a prefabricated steel structure manufactured and sold by PAS-COE Steel Corporation, would not be identical to the VARCO-PRUDEN building in every detail, but would be of similar size and strength so as to permit the defendant’s two fifteen-ton overhead cranes to operate from building to building. The primary design difference between the PAS-COE building supplied by Mosley and GCF’s existing VARCO-PRUDEN building is in the crane support system. GCF’s existing building has two separate columns, whereas the new PASCOE building has one column with a triangular support bracket welded to it. Additionally, the existing VARCO-PRUDEN building has four anchor bolts per column while the PASCOE building has only two bolts.'

GCF instructed Mosley to proceed with construction of the new building and agreed to make progress payments to Mosley as follows:

(1) payment for the concrete slab upon completion of all slab and foundation work, including authorized additions;

(2) payment for cost of building materials upon delivery of the materials to GCF’s plant; and

(3) payment of the balance of the contract upon completion of the building.

The contract price for slab and foundation work was $20,714.00; cost of the building materials was $46,031.00, and a balance of $8,537.00 was due upon completion of the building. Total consideration for the contract was $75,282.00.

Mosley completed the slab and foundation work in late April 1980, but was not paid at that time. Nor was it paid when the building materials were delivered to GCF’s plant on May 2, 1980. In late May 1980, GCF informed Mosley that, if Mosley wished to receive payment and proceed with the job, additional crane supports would have to be designed and constructed into the building at no extra cost. Mosley submitted a new proposal incorporating additional crane columns at an additional cost of $14,000.00, although they were unnecessary to meet GCF’s load requirements and would have given the building twice the load capacity of the existing VARCO-PRUDEN building. GCF was unwilling to pay the extra cost and the additional supports were never delivered. It is undisputed that GCF has never made any payments on the contract.

Mosley filed suit against GCF in October 1980, seeking recovery for breach of contract and for work and labor done. GCF, in its answer, claimed that the labor and materials supplied by Mosley did not conform to the contract made the basis of plaintiff’s suit. GCF also counterclaimed against Mosley for the cost of storing the building materials left at GCF’s plant site.

At trial, many facts were in dispute, and much of the testimony conflicted. The trial court, sitting without a jury, rendered a judgment in favor of Mosley in the amount of $62,745.00 on the original complaint and also rendered judgment in favor of Mosley on GCF’s counterclaim for storage costs. The trial court credited GCF with an amount expended on slab modifications done by a firm other than Mosley shortly before trial of the case, and GCF admits it owes Mosley the remaining balance due on the slab. GCF’s post-trial motions were denied, and this appeal followed.

In its brief, GCF relies on the provisions of Article 2 of the Uniform Commercial Code to support its contention that it properly rejected Mosley’s building materials as non-conforming and that it is entitled to storage costs for those same materials.

GCF contends that the sale and erection of the PASCOE prefabricated building made the basis of this action falls within the definition of a “good” under § 7-2-105, Code 1975. GCF further argues that a contract or agreement which is in essence a contract for sale, although including an agreement for work and labor, is subject to the applicable provisions of the Uniform Commercial Code, as adopted by this state. See, Port City Constr. Co. v. Henderson, 48 Ala.App. 639, 266 So.2d 896 (1972). We agree that the prefabricated building is a “good” under Article 2 of the U.C.C., but we do not agree that the U.C.C. gives the buyer an absolute and unqualified right to reject it.

A buyer may reject delivery of goods only if either “the goods or the tender of delivery fail in any respect to conform to the contract.” § 7-2-601, Code 1975. In the present case, GCF does not claim the tender was inadequate. Rather, GCF contends that the materials for the new building did not conform to its existing building. Specifically, the appellant claims that the crane support system incorporated into the PASCOE prefabricated building was inadequate to allow the movement of two fifteen-ton overhead cranes into the new building. GCF mistakenly argues that the language of § 7-2-601 gives the buyer the right to reject if the goods fail to conform in any respect. The dispositive question, however, is not whether the new building conforms to the existing building, but whether it conforms to the contract.

Goods are deemed to conform to the contract “when they are in accordance with the obligations under the contract.” § 7-2-106(2), Code 1975. The evidence shows that GCF, by and through its president, Buddy Lowe, entered into an oral contract with G.M. Mosley, president of the plaintiff corporation, for construction of the new building. Mr. Mosley informed Lowe that the new PASCOE building would not be identical to the existing VARCO-PRUDEN building in every detail, and Lowe testified that the only requirement he made concerning the type building desired was that the new building be the same strength as GCF’s existing structure. Mr. Mosley subsequently obtained the specifications for a building one hundred feet long and of similar width, height, and strength to the VARCO-PRU-DEN building, and placed an order for a prefabricated steel building with PASCOE.

Shortly after the building materials were delivered to GCF’s plant site, Lowe informed Mosley that he was rejecting them on the ground that the overhead crane beams appeared to be insufficient to carry the weight of the two cranes. Lowe, lacking any formal education as an engineer, based his rejection of the building materials solely on his personal observation. Lowe failed to offer any other evidence to support his claim that the building materials did not meet GCF’s structural requirements. However, Jack Pope, a licensed structural engineer responsible for the design of the PASCOE building in question, testified that he furnished Lowe certified drawings and calculations showing that the PASCOE building was adequately designed and met all applicable building code requirements, and, further, that the PASCOE building was the same strength as the VARCO-PRUDEN building, and would permit efficient functioning of the crane system between the two buildings.

The question of whether the building materials delivered by Mosley are the same strength as GCF’s existing structure, and thereby satisfy the obligations under the oral agreement entered into by the párties, is purely one of fact. We hold that the trial court, based on the evidence before it, was justified in concluding that the PASCOE building materials did in fact meet the size and strength requirements of GCF and, therefore, conformed to the contract. As such, GCF’s wrongful rejection of conforming goods constitutes a breach of contract for which damages are recoverable.

GCF also argues that the trial court erred in determining the amount of damages recoverable by Mosley. We disagree. The total contract price was $75,282, and it is undisputed that GCF has never made any payments on the contract. The trial court, having found GCF liable for breach of the contract, awarded Mosley $62,745; the trial court apparently credited GCF with an amount it spent on subsequent slab modifications made necessary by heavy rainfalls that washed away the supporting soil. The trial court’s judgment does not include an express finding of facts.

On appeal from a judgment entered without any specific findings of fact, we assume that the trial court’s judgment is based upon facts appearing in the record. The evidence below clearly supports the judgment of the court. We are, therefore, compelled to affirm. Thomas v. Davis, 410 So.2d 889 (Ala.1982); O’Connor v. Rabren, 373 So.2d 302 (Ala.1979).

This case was tried without a jury. Conflicting evidence was taken orally, through numerous exhibits and also by the admission of relevant parts of the deposition of Buddy Lowe. It is well settled that:

“When a trial court makes findings of fact based on evidence presented ore ten-us, those findings of fact will not be disturbed on appeal unless clearly erroneous or manifestly unjust, and this rule is especially applicable in cases in which the trial court makes its findings of fact after hearing conflicting evidence; every presumption will be indulged in favor of the court’s findings, and those findings will not be disturbed unless palpably wrong. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980).”

The judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    GOLD KIST, INC. v. Charles FORD and Gail Ford.
    82-183.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      James T. Upchurch, III of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
    James T. Sasser of Wood, Minor & Parnell, Montgomery, for appellees.
   SHORES, Justice.

The defendant, Gold Kist, Inc., appeals from a judgment entered against it on a verdict finding it liable for breach of contract and tortious misrepresentation by mistake.

Gold Kist is the parent company of the Farmers Mutual Exchange of Hope Hull (Exchange), an agricultural cooperative set up by Gold Kist to market its products in the area near Hope Hull, Alabama. In 1978, the Exchange was managed by Cecil Christenberry, a licensed investment broker and an employee of Agvestments, Inc., another wholly-owned subsidiary of Gold Kist.

On August 8, 1978, after some preliminary negotiations, Christenberry sold an investment security to the Fords, the appel-lees. The Exchange issued a certificate, which states in part:

“This Acknowledges That
“FARMERS MUTUAL EXCHANGE
“OF
“HOPE HULL, INC.
“Hope Hull, Alabama
“a cooperative association organized under the laws of the State of Alabama, (the ‘Association’) for value received, hereby promises to pay to Charles F. Ford, III, and Gail C. Ford . .. the principal sum of $20,800.00 on July 31, 1992, and to pay interest thereon at the rate of 9% per annum on June 22nd of each year. This Certificate is issued under the authority of a resolution adopted by the Board of Directors of the Association, on July 12,1977, and is subject to the following terms and conditions.
“4. This Certificate may be prepaid at any time, without premium or penalty, in whole or in part, at the discretion of the Board of Directors.”

At the time the investment was made, the board of directors at the Exchange approved payments on the certificates. In early 1980, Gold Kist acquired the Exchange and assumed all its obligations. Thereafter, the board of directors of Gold Kist in Atlanta, Georgia, became the approving body.

The Fords subsequently ran into financial difficulties and decided to redeem the certificate for cash to pay off their debts. They approached Christenberry in early 1981. He advised them that he had no authority to cash the certificate, but he would relay their request to Gold Kist’s board of directors. The board refused to permit the payees to receive prepayment of the certificate.

The Fords filed suit against Gold Kist and Christenberry, alleging breach of contract and misrepresentation. Christenberry was voluntarily dismissed from the contract count at the close of the plaintiffs’ ease. Although judgment was entered against him for misrepresentation by mistake, he did not appeal.

The Fords claim that Christenberry, as the agent of Gold Kist, assured them that the certificate was fully redeemable prior to maturity. Mr. Ford testified that Christen-berry told them that any request to redeem the certificate had to be forwarded to the local board of directors, but there would be no problem in getting payment. The witness for the Fords, a friend of theirs who was present at the meeting at which the terms of the certificate were explained, corroborated Mr. Ford’s testimony. Mr. Ford denied being told that the board had to approve the redemption. It was his understanding that the board merely disbursed the funds and determined whether to charge a penalty for early redemption. Mrs. • Ford stated that her chief concern about the certificate was its redemption provision. Christenberry allegedly reassured her that her concern was needless because the certificate was fully redeemable at any time.

Christenberry, testifying on his own behalf and for Gold Kist, stated that early redemption was allowed only by board approval, but there was no penalty for it. He testified that he discussed all of the terms and conditions of the investment contract, and he believed that the Fords understood the contract, including the provision regarding early redemption.

The case was submitted to the jury, and a verdict was returned against Gold Kist for breach of contract, and against Gold Kist and Christenberry for tortious misrepresentation-by mistake. Apparently, the jury, which was instructed to determine what were the terms of this “partially written and partially verbal contract,” found that the contract called for redemption upon the demand of the certificate’s holder, without board approval.

The first issue before us is whether the trial court properly denied Gold Kist’s motion for directed verdict on the contract count.

Gold Kist’s position is that the contract requires board approval for premature redemption. It claims that the written contract is the only contract, and that it unambiguously states all of the contract terms, none of which were breached by Gold Kist when it refused to redeem the certificate. Gold Kist argues that it was, therefore, error for the trial court to deny its motion for directed verdict on this count.

The Fords claim that the “true” contract included a term providing that the certificate was fully redeemable prior to maturity upon the holder’s request, without board approval. When Gold Kist refused to redeem the certificate, they say, it breached the contract. The thrust of their argument is that the contract, particularly paragraph four (reprinted above), is ambiguous. They argue that the paragraph has at least two meanings: That it can be interpreted to mean that the certificate is redeemable “at any time,” but a penalty for early redemption could be levied at the discretion of the board of directors; and that it could also mean that all early redemptions must be approved by the board. They contend that the first interpretation was the one intended to be adopted by the parties.

Evidence of oral promises, not expressly included in a written agreement, may be considered by the jury to assist it in interpreting a contract only if the trial court first determines that the contract is ambiguous. Wigington v. Hill-Soberg Co., 396 So.2d 97 (Ala.1981).

We cannot accept the interpretation urged upon us by the Fords, in the face of the plain meaning of the words and the precise punctuation of the paragraph. The meanings of the words themselves are clear and undisputed. The date of maturity is clearly and unambiguously stated on the certificate as being July 31, 1992.

If a contract is unambiguous, the court must determine the force and effect of the contract as a matter of law. Wigington v. Hill-Soberg Co., 396 So.2d at 98. Paragraph four simply states that regardless of the date of maturity, the certificate may be redeemed at any time at the discretion of the board, not at the discretion of the holder. It also clearly states that if the certificate is paid prior to maturity, there will be no penalty. We hold that, as a matter of law, this contract is unambiguous.

We hold that it was reversible error for the trial court to deny Gold Kist’s motion for directed verdict on the contract count. The written contract (the certificate) was unambiguous, and Gold Kist had not breached it by refusing redemption. Gold Kist also claims that the court failed to instruct the jury that justifiable reliance is a necessary element of tortious misrepresentation and must be found before holding Gold Kist liable on that count. A review of the record shows that the trial court did not adequately cover this element when it first charged the jury, but upon the jury's request, further instructions were given and they included charges on justifiable reliance. We hold that there was no error. Murray v. Alabama Power Co., 413 So.2d 1109 (Ala.1982).

Gold Kist did not otherwise challenge the jury’s verdict on the count of tortious misrepresentation. However, it does argue that there is reversible error because the trial court allowed the jury to return a verdict for breach of contract and tortious misrepresentation. It claims these verdicts were inconsistent, and the jury should have been instructed that it could not return a verdict for the Fords on both counts. Gold Kist’s requested charge to the jury to this effect was denied, and it argues that this, too, is error, requiring reversal. We agree.

Gold Kist cites National Security Fire and Casualty Co. v. Vintson, 414 So.2d 49 (Ala.1982), in support of its argument that the court erred in refusing to charge the jury that the Fords could not recover on both counts. In Vintson, the insured alleged that the insurer breached the contract of insurance when it failed to pay for a covered loss. He also claimed damages for the misrepresentation that the policy was in effect immediately, when, in fact, it was not effective until delivered. The policy had not been delivered prior to the date of the loss. We held that these theories were factually inconsistent. A verdict for the insured on the contract theory required a finding that a contract was in existence at the time of the loss. Alternatively, a verdict for the insured on the misrepresentation action required a finding that no contract existed. We held that both theories can be submitted to the jury, but the jury must be instructed that if the verdict is for the insured, it can be only on one of the counts, not both. National Security Fire and Casualty Co. v. Vintson, 414 So.2d at 51. See, also, United States Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978).

In this case, there is no question about the existence of a contract. Both sides acknowledge that a contract was made. They disagree only on the issue of its ambiguity. We have held that the contract is not ambiguous and, therefore, parol evidence is inadmissible to vary its terms. However, the parties are at odds as to whether the contract was procured through the fraud or misrepresentation of Christen-berry. The Fords are entitled to attempt to prove this alleged tort by parol evidence.

Because the trial court erred in denying Gold Kist’s motion for directed verdict on the contract claim and because it also erred in refusing Gold Kist’s requested charge number ten, the judgment must be reversed, and the cause remanded for a new trial.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, JONES and ADAMS, JJ., concur.