Bloom v. Americus Grocery Co

• Decision Date: 12 December 1902
• Citation: 116 Ga. 784,43 S.E. 54
• Parties: BLOOM et al. v. AMERICUS GROCERY CO.
• Court: Georgia Supreme Court

43 S.E. 54

116 Ga. 784

BLOOM et al.

v.AMERICUS GROCERY CO.

Supreme Court of Georgia.

Dec 12, 1902.

SALE—FAILURE TO DELIVER—DAMAGES—NONSUIT i

1. There was no variance between the allegata and the probata.

2. The measure of damages recoverable of a vendor for failure to deliver goods sold being the difference between the contract price and the market value at the time and place for delivery, it follows that where a vendee, upon the trial of an action against his vendor for such damages, failed to submit any evidence as to the market price at the time for delivery, no actual damages could be recovered.

3. Where, under the evidence, the plaintiff is entitled to recover nominal damages, it is erroneous to grant a nonsuit.

(Syllabus by the Court.)

Error from city court of Americus; C. R. Crisp, Judge.

Action by Bloom Sons against the Americus Grocery Company. Judgment for defendant, and plaintiffs bring error. Reversed.

W. A. Dodson, for plaintiffs in error.

Shipp & Sheppard, for defendant in error.

FISH, J. Bloom Sons brought an action against the Americus Grocery Company for damages for the failure by the defendant to deliver a certain quantity of pease which the plaintiffs had purchased of it. The contract was evidenced by a correspondence between the parties, and can be sufficiently understood from the following letters:

"Americus, Ga., Apr. 2, 1901. Messrs. Bloom & Sons, New Orleans, La.—Gentlemen: Replying to your telegram of the first, will say we did not answer from the fact that we have these pease in a dozen different little towns right around here, and don't know how long it will take to get them up for you. Please let us know, on receipt of this, when you would expect shipment of the pease, as a lot of the little country merchants are very hard to get prompt shipment. Unless you could give us a reasonable length of time to get them we would not care to bind ourselves for a car; so kindly let us know your views in the matter, and we will answer you at once, declining or confirming the order. Yours, truly, Americus Gro. Co."

"New Orleans, La., April 4th, 1901. Americus Gro. Co., Americus, Ga.—Dear Sirs: Replying to yours of the 2nd, we think rates car load or less are the same, viz., 24 cents a 100, and, if this is the case, you can go ahead and ship them right along; but, if you are forced to have a car in order to get the rate of 24 cts., we will allow you 20 days to ship them. Advise us as soon as you get this if all is O. K., or just what you do, as we are purchasing a good many, and want to know just where we stand. Respt, Bloom Sons."

"Americus, Ga., April 5th, 1901. Messrs. Bloom & Sons, New Orleans, La.—Gentlemen: We accept your offer for car load of pease at $1.17-2, f. o. b. here, and will begin shipping same to you just as soon as they arrive. Will ship you approximately 100 bushels Monday, and, as fast as they arrive, will ship you all we get not exceeding 500 bushels. If this does not meet with your approval, wire us on receipt of this, as we will possibly ship you one lot Monday, and ship in about same size lots until same is completed. Yours, truly, Americus Grocery Company."

Albert Bloom, on behalf of the plaintiffs, testified as follows: "That he remembered the transaction between Bloom Sons and the Americus Grocery Company; that there was delivered to Bloom Sons 15, 689 lbs. of pease, and that the Americus Grocery Company failed to furnish 14, 311 pounds, or in the neighborhood of 238 bushels; that, on account of the Americus Grocery Company not furnishing the pease, plaintiffs had to go out in the city of New Orleans and buy the pease, paying for them at open market 1.97-2 per bushel; and that Bloom Sons had to pay $156.40 more for the pease purchased by them than the contract price from the Americus Grocery Co." The bill of exceptions recites that "defendants in their plea admitted that they did sell plaintiffs some pease f. o. b. Americus, and the Americus...