17 S.E. 1015 (Ga. 1892), Fontaine v. Baxley

Citation:17 S.E. 1015, 90 Ga. 416
Opinion Judge:BLECKLEY, C.J.
Party Name:FONTAINE v. BAXLEY et al. BAXLEY et al. v. FONTAINE
Attorney:Little & Wimbish, for plaintiff in error. Peabody, Brannon & Hatcher, for defendants in error.
Case Date:August 27, 1892
Court:Supreme Court of Georgia
 
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Page 1015

17 S.E. 1015 (Ga. 1892)

90 Ga. 416

FONTAINE

v.

BAXLEY et al.

BAXLEY et al.

v.

FONTAINE

Supreme Court of Georgia

August 27, 1892

Syllabus by the Court.

1. After part performance, to the extent of going to New York and opening business, mutuality is not wanting in a contract which stipulates that one party shall go to that city, and there open and conduct a business on his own account for the sale of a commodity not an article of general commerce, and that the other party shall furnish and deliver to him, at a specified price, so much of the commodity, not exceeding a given quantity monthly, as he (the proprietor of the new business) shall pre-engage to his customers during the period of one year, the mode of conducting the new business contemplated being that the proprietor of that business is to discover purchasers, make binding contracts with them, and then other and receive enough of the commodity from the other party to fill such contracts.

2. In consequence of provisions of the Code, §§ 3261, 2909, set-off and recoupment are substantially alike, and do not differ in their effects on the result of the suit. For this reason, matter which is technically proper for one of these defenses may be pleaded as the other, and, when so pleaded, may be proved by evidence competent to support either form of plea. Though the plea as one of recoupment was defective, in wanting allegations identifying the contract sued on as a part of the contract described in the plea, and the breach of which by the plaintiff is alleged, to the defendant's damage, yet, as the court sustained the plea, and the matter of it would, under the Code, be good as a plea of set-off, the judgment sustaining it will not be reversed. Its defects as a plea of recoupment are amendable, and it can be amended at any time.

3. Code, § 2950, declares that "any necessary expense which one of two contracting parties incurs in complying with the contract may be recovered as damages." When this applies in behalf of a defendant, a plea which alleges the breach of a contract by the plaintiff, sets out that the defendant incurred expenses in performing on his part, and alleges specific facts, from which it is fairly inferable that some or all of the expenses were necessarily incurred, is good in substance; but, when demurred to specially for failure to itemize the expenses, it should be amended so as to give the plaintiff reasonable notice of the substantial particulars constituting such claim.

4. Where performance of a contract by the defendant was to be at his own expense, he cannot recoup or set off against the plaintiff both the expenses incurred and full damages otherwise sustained on account of the breach complained of. Where both matters are pleaded, the defendant should be required to elect between them at or before the trial.

5. The damages suffered in consequence of breaking up pending overtures and negotiations for pre-engaging the commodity at the time notice was given by the party who undertook to make delivery that no further deliveries would be made are not speculative, nor too remote, provided it be shown by evidence that certain contracts pre-engaging the commodity would, if not thus broken up, have been made and complied with, and that the difference between cost and net proceeds in each case would have been a fixed sum.

6. On the facts in evidence, the defendant below, plaintiff in error here, was chargeable with the disputed item as to storage.

Error from city court of Columbus; J. L. Willis, Judge.

Action by Baxley, Bowles & Co. against George H. Fontaine for balance on account. Judgment for plaintiffs. Defendant brings error. Plaintiffs file a cross bill of exceptions. Judgment reversed. Affirmed on cross bill.

After part performance to the extent of going to New York and opening business, mutuality is not wanting in a contract that one party shall go to that city, and there conduct a business for the sale of a special commodity, and that the other shall furnish him, at a specified price, so much of the commodity as he shall pre-engage to his customers during one year.

The following is the official report:

Baxley, Bowles & Co. sued Fontaine for a balance claimed to be due on an account for cross-ties, including a charge of $232.50 for storage on ties in Brunswick. The defendant's first plea, besides that of the general issue, set up that, in so far as the ties were delivered, they were delivered in pursuance of a special contract between the plaintiffs and himself, whereby the plaintiffs agreed to furnish him, delivered free on board ship at Brunswick, 50,000 ties of a certain description, all to be delivered between September, 1889, and July, 1890, for which the defendant agreed to pay a certain price 60 days after delivery of each ship load free on board at Brunswick, less 10 per cent. of such amount, which it was agreed the defendant should retain as guaranty of the fulfillment of the contract, to be paid the plaintiffs only after full completion of the contract; that, in pursuance of the contract, the plaintiffs did deliver to him f. o. b. at Brunswick a certain number of ties; that from time to time, at the special request of the plaintiffs, and as an accommodation to them, he made advance payments on account of the several shipments before the same were due and payable; that, in order to do this, it became necessary for him to borrow from bank at interest, upon faith of the several cargoes, the amounts so respectively paid, and also to insure said cargoes, all of which was well known to the plaintiffs, who, in consideration of such advance payments, agreed to repay him the amounts so by him paid on account of interest and insurance, (the amounts of the advances, interest, and insurance being itemized;) and that, of the gross number of ties shipped, 729 were rejected in New York, according to the contract, and on these the defendant had paid freight from...

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