Barwick v. American Mfg. Co.

• Citation: 119 S.E. 218,30 Ga.App. 761
• Decision Date: 28 September 1923
• Docket Number: 14059.
• Parties: BARWICK v. AMERICAN MFG. CO.
• Court: United States Court of Appeals (Georgia)

119 S.E. 218

30 Ga.App. 761

BARWICK v. AMERICAN MFG. CO.

No. 14059.

Court of Appeals of Georgia, Second Division

September 28, 1923

Syllabus by the Court.

Where a purported contract between a manufacturer and a sales agent provides that the manufacturer is to make for the sales agent 100,000 hoes at a stipulated price per dozen, and to be paid therefor out of the proceeds of sales made to customers whom the plaintiff may procure, but is to remit to the sales agent any excess in the sales price collected from the customers over and above the stipulated price made to the sales agent no actual damage is shown as having been sustained by the sales agent by the refusal of the manufacturer to comply with the agreement to accept and furnish hoes to a customer procured by the sales agent, where it does not appear that the customer was to pay for the hoes at a price in excess of that which under the contract was to be paid to the manufacturer.

Where a petition cannot be construed as asking for general or nominal damages, but, as here, is expressly limited to a prayer for special damages only, and these are not recoverable, the suit is not maintainable merely for the recovery of nominal damages. Truitt v. Rust, 25 Ga.App. 62 (2), 102 S.E 645.

In a suit by the sales agent against the manufacturer to recover damages for such an alleged breach of the alleged contract since it does not appear that the plaintiff suffered any damage, the demurrer to the petition was properly sustained.

Error from Superior Court, Thomas County; W. E. Thomas, Judge.

Action by J. W. Barwick against the American Manufacturing Company. Judgment for defendant on demurrer, and plaintiff brings error. Affirmed.

The plaintiff sues for the breach of an alleged contract and in his petition as amended alleges:

"That on November 28, 1916, your petitioner and said American Manufacturing Company entered into a contract whereby said American Manufacturing Company undertook to make, manufacture, and deliver to your petitioner, or to such customers of your petitioner as he might direct, f. o. b. Chattanooga, Tenn., 100,000 weeding hoes, at and for the price of $2.50 per dozen, and your petitioner agreed to pay for the same at and for the price of $2.50 per dozen. Said company was to bill said hoes to said customers of petitioner at such price per dozen as your petitioner named. Said company further agreed to make, manufacture, and deliver said 100,000 hoes between January 1, 1917, and April 1, 1918. * * * On June 8, 1916, your petitioner gave to the defendant a written order for the manufacture of 100,000 Barwick hoes, to be made of the sizes and the material, to be delivered at the times and in the quantities and on the terms specified in said order, a copy of which is hereto attached marked Exhibit A, and made a part of this amendment. On or about September 1, 1916, said American Manufacturing Company accepted said order, and undertook and agreed to manufacture and deliver said hoes upon the terms specified in said order. By mutual agreement between plaintiff and defendant said contract was modified and changed, and plaintiff and this defendant entered into the contract of November 28, 1916, set out in paragraph 1 of the petition in

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