Adams v. Fleming

• Decision Date: 17 April 1925
• Docket Number: 15906.
• Citation: 127 S.E. 819,33 Ga.App. 742
• Parties: ADAMS v. FLEMING.
• Court: Georgia Court of Appeals

127 S.E. 819

33 Ga.App. 742

ADAMS v. FLEMING.

No. 15906.

Court of Appeals of Georgia, Second Division

April 17, 1925

Syllabus by Editorial Staff.

In action for balance of price of property sold, in which the evidence showed without dispute that property had not been sold but had been delivered to defendant under contract for the exchange of such property for other property, a part of which plaintiff had not received, and that plaintiff had not rescinded the contract or offered to do so, but was relying thereon, a verdict for plaintiff was without evidence to support it, was contrary to law, and should have been set aside on motion for new trial.

Remedy for breach of contract to deliver property in exchange for property received therefor under contract for exchange of property is an action for damages for breach of contract and not action on open account as for balance of purchase price of property sold and delivered.

Measure of damages for breach of contract to deliver property in exchange for that received under contract for exchange of property is the market value of property plaintiff should have received, but had not received, in the exchange, to be determined as of the time for delivery under the contract under Civ. Code 1910, §§ 4270, 4271.

Error from City Court of Barnesville; J. F. Redding, Judge.

Action by J. B. Fleming against W. J. Adams. Judgment for plaintiff and defendant brings error. Reversed.

Claude Christopher, of Barnesville, for plaintiff in error.

Dobbs & Barrett, of Barnesville, for defendant in error.

Syllabus OPINION.

BELL J.

Where an action was brought upon an open account as for the balance of the purchase price of property sold and delivered, and the evidence on the trial showed without dispute that the property had not been sold, but had been delivered to the defendant under a contract for the exchange of the same for other property, a part of which the plaintiff had not received, and that the plaintiff had not rescinded the contract or offered to do so, but was relying thereon, a verdict in his favor was without any evidence to support it and contrary to law. The plaintiff's remedy was an action for damages for a breach of contract, and the measure of damages would be the market value of the property that he should have received, but had not received, in the exchange to be determined as of the time for delivery under the contract. Butler v. Sams, 138 Ga....