Armour v. Ross
| Citation | 35 S.E. 787,110 Ga. 403 |
| Parties | ARMOUR et al. v. ROSS et al. |
| Decision Date | 06 April 1900 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
1. When a petition alleging the breach of a contract does not definitely state whether the contract was in writing or not but simply describes it by setting forth a "memorandum of agreement made and entered into" between the plaintiff and the defendant, such petition is amendable, so as to make it declare that the contract was oral, that its terms were the same as those embraced in a written contract between the defendant and another party, and that those terms appear in the memorandum set forth in the petition. An amendment of this character is germane, and does not set forth a new cause of action.
2. Such a petition is further amendable by adding thereto a statement of particulars, showing the precise facts and conditions under which the alleged breach of contract occurred.
3. Where, in the trial of such an action, the plaintiff's contention was that the alleged breach of contract caused deterioration in the value of perishable property, with resulting loss, it was competent for him to testify in his own behalf that he had been offered a specified price for the property before it was damaged, and also to state the net amount he had received from a sale thereof in market by a factor after the damage. This evidence was admissible without producing the account of sales, or proving by the factor himself the price he received; especially so, when the plaintiff further testified that the amount remitted to him was the fair value of the property in its damaged condition. (a) Though the contract in question was one to furnish cars for the shipment of fruit, the fact that the offer received by the plaintiff for the fruit was made shortly before it was ready for shipment did not render the testimony as to the offer inadmissible.
4. Evidence of such an offer was not inadmissible merely because it was made orally, and because it related to a matter which under the statute of frauds, required a writing to constitute a binding contract.
5. This court cannot consider an objection to the admissibility of an answer to a question propounded to a witness, when it does not appear from the motion what the answer to the question was.
6. Where it is a material question at issue whether the relation of principal and agent existed between two persons, the alleged agent is a competent witness to testify to facts showing the existence of the agency. Receiving his testimony for this purpose would not be proving agency by the hearsay declarations of the alleged agent, but by his sworn testimony as a witness.
7. If one who has two entirely distinct demands against another accepts payment of one and gives a receipt therefor, there being at the time no mention of the other, or any attempt whatever to settle or adjust it, a mere recital in the receipt that it is "in full payment of all claims to date, of whatsoever nature," is without consideration so far as relates to the unsettled demand, and does not estop the person signing the receipt from afterwards asserting that demand, nor render it incumbent upon him, before so doing, to refund the money received upon the claim as to which there was no dispute.
8. There was sufficient evidence on the trial of the present case to warrant a finding that the agent of the defendant, with whom the plaintiff dealt in making the contract declared upon, was a general agent of the former; and accordingly the charges complained of, to the affect that private instructions or limitations not known to persons dealing with a general agent cannot affect them, were appropriate.
9. There is no merit in the numerous grounds of the motion for a new trial excepting to other portions of the charge. The same, as a whole, fully and fairly covered the issue between the parties, and was authorized by the evidence introduced on the trial. There was sufficient evidence to support the verdict.
Error from city court of Macon; W. D. Nottingham, Judge.
Action by Ross & Barfield against Armour & Co. Judgment for plaintiffs, and defendants bring error. Affirmed.
Dessau, Harris & Birch, Pope S. Hill, Roland Ellis, and Dessau, Bartlett & Ellis, for plaintiffs in error.
Steed & Ryals, for defendants in error.
Ross & Barfield brought an action by attachment against Armour & Co., of Chicago, Ill., for the recovery of damages resulting from the alleged breach of contract by the defendants, which contract was set forth in the petition in the following language:
The petition alleged, in substance, that on the 19th, 20th, 21st, and 22d of July, 1898, the principal part of the peach crop of petitioners, covered by above contract, ripened, and that Armour & Co., in accordance with the terms of the contract, were notified, 24 hours ahead, of the cars that petitioners required each day to ship their peaches, and on each of said dates failed to furnish the requisite cars requested by plaintiffs. On July 19th, two cars were required, and none furnished; on July 20th, three cars were required, and only one furnished; on July 22d four cars were required, and only two were furnished; and of the two cars required and furnished on July 23d, one of them was not the kind called for by the contract, but was a dirty meat car, totally unfit for the shipment of fruit, and was only used by petitioners in preference to letting the fruit that was loaded in it decay and become a total loss. On July 19th and 20th petitioners, relying on defendants to comply with their contract, had picked, packed, and crated, in and around their packing house, ready to be loaded into the refrigerator cars requested of defendants, the peaches to fill the cars so requested; but, by reason of defendants failing to furnish said cars as contracted by them, said peaches were from 24 to 48 hours old before they could be loaded into refrigerator cars and shipped, became overripe for shipment and soft, and greatly deteriorated in value. For the purpose of keeping down their damages to the smallest sum, petitioners did not throw the peaches out to decay and become a total loss, which fruit was picked, packed, and ready to be loaded on the cars on July 19th and 20th; but, as soon as defendants furnished cars, petitioners loaded the peaches into them, and shipped them to different markets, where they were informed and believed they would bring the best prices in their damaged condition. All these facts were known to defendants, whose agents went into petitioners' packing house daily from July 15th to 23d. The petition sets forth an itemized statement of the number of cases of peaches thus damaged by the delay in their transportation, and the amount of damage upon each of the several cases named, which amount aggregated the sum of $550.01. The petition further set forth the offer that plaintiffs had received for the above mentioned fruit in first-class shipping condition f. o b. at their packing house, but alleged that, by reason of defendant's failure to furnish cars as above mentioned, they could not furnish the peaches in prime condition for shipment, and hence were forced to ship the fruit to commission men in distant markets, to be sold for what they would bring, and they could not sell the peaches to their local market, by virtue of which fact petitioners claimed to have been damaged in the sum above stated.
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