Bridges v. Home Guano Co

• Decision Date: 07 December 1924
• Docket Number: (No. 15836.)
• Citation: 33 Ga.App. 305,125 S.E. 872
• Parties: BRIDGES. v. HOME GUANO CO.
• Court: Georgia Court of Appeals

33 Ga.App. 305

125 S.E. 872

BRIDGES.

v.HOME GUANO CO.

(No. 15836.)

Court of Appeals of Georgia, Division No. 2.

Dec. 7, 1924.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error from City Court of Bainbridge; H. B. Spooner, Judge.

Action by R. L. Z. Bridges against the Home Guano Company. Judgment for defendant, and plaintiff brings error. Reversed.

R. L. Z. Bridges brought an action for damages against Home Guano Company for the breach of an alleged contract for the sale and delivery of 20 tons of fertilizer. A copy of the writing upon which the plaintiff relied as constituting the contract was annexed to the petition, and was as follows:

"The Home Guano Company.

"Dothan, Ala., Feby. 24, 1922.

"To R. L. Z. Bridges, Brinson, Ga. —Dear Sir: We have this day agreed to ship to you, subject to the acceptance of the company, from Dothan office [variously described brands and grades of fertilizers aggregating twenty tons, at stated prices, to be paid for on May 1, 1922]. These goods are to be delivered f. o. b cars at Brinson, Ga., at above prices ($1 per ton for drayage will be charged on all lots less than car lots) and are to be taken before June 1st next.

"The company's guaranty applies only to chemical composition of the goods, as expressed in guaranty printed on bags and filed with the different state departments. Purchaser may demand customer to weigh fertilizers at his depot, otherwise company will not be responsible for any difference in weights. Customer agrees that he or his agent will not claim that fertilizers were not branded and tagged in accordance to law, should he fail to notify company of such fact upon arrival and before removal of said fertilizers, also agrees that ownership of all unsold or undelivered goods remain with the company and is subject to its order. Customer must get consent of company before using any of these fertilizers shipped him under this contract. This contract not subject to cancellation without company's con-Bent.

"For all goods shipped customer is to give his or their notes at above-named prices on company's regular form not later than May 1st next, or customer's account or indebtedness shall become due and payable at once at the option of the company payable in cash, and it is further agreed to pay a reasonable attorney's fee on said note or notes if process of suit is necessary. And you further agree to secure your note or notes by pledging and lodging with said company as collateral security not later than June 30th next (or this account becomes payable at once) all notes of purchasers from you of the goods of this company which customer absolutely guarantees, and if company requires it, all such notes or mortgages, open account, or other record of each sale shall be endorsed by customer and delivered to company; and you bind yourself to hold such notes, mortgages, open accounts, or other records of such sales for collection and subject to order of the company, and the accounts until the notes are taken, also the goods on hand, in trust for said company, and will sign and return to company their regular trust receipt covering said notes, mortgages, open accounts, or other records of sales until all your indebtedness is paid on your account or notes to said company; remitting the money on these collateral notes and accounts as fast as collected, and all money collected shall be kept subject to company's order. You agree to pay said company at once for any portion of these goods you may sell for cash. Customer agrees that all expenses to collect notes or accounts of purchasers of said fertilizers shall be borne by customer. Upon failure of customer to comply with any of the agreements herein, said account or notes of customer, either or both, shall become at once due and payable at the option of the company.

"We reserve the right to cancel this contract in case of any occurrence that we may regard as unfavorable to your credit. We are not responsible except for definite engagements for delays in transportation. In case of destruction of our mills, in whole or in part or stoppage by strikes or other causes, we reserve the right to cancel all or any part of this contract; and the company reserves the right to ship all or any part of this contract as they may deem expedient.

"It is mutually agreed that the terms, conditions, and prices stated herein are in no way to be affected by any other contract customer or company may make, and that no verbal or writ-ten statement between customer and company's salesman shall be binding on the company, unless confirmed and authorized by letter signed by the general manager of the company and it shall become a part of this contract.

"The Home Guano Company, "By N. R. Graham, Salesman.

"The Home Guano Company, Dothan, Ala.— Dear Sir: We or I hereby accept this contract upon the terms and conditions stated therein. [Signed in duplicate] R. L. Z. Bridges, Customer. Approved: M. L. Hanahan, Treas. & General Manager."

The defendant made an oral motion to dismiss the declaration, which the court sustained, rendering the following judgment:

"It appearing to the court that the contract sued upon contains the following clause, to wit, 'the company reserves the right to ship all or any part of the contract as they may deem expedient, ' and the court being of the opinion that the plaintiff has no cause of action against the defendant because of said clause contained in the contract sued upon, it is hereby ordered and adjudged that the declaration be and the same hereby is dismissed upon motion of defendant."

The plaintiff excepted.

Harrell & Custer, of Bainbridge, for plaintiff in error.

Hartsfield & Conger, of Bainbridge, for defendant in error.

BELL, J. If the petition, for any other reason than that mentioned in the judgment of dismissal, had failed to set forth a cause of action, we possibly should affirm the judgment, even though we disagreed with the learned trial judge in the ground upon which the dismissal was based; but since counsel for both parties have devoted their arguments mainly to the point upon which the court below disposed of the matter, and since we are satisfied that whether the plaintiff was entitled to recover all of the damages for which he sued his petition was good for a recovery of at least a part of the same, and therefore not subject to be stricken in its entirety (Port Wentworth Terminal Corporation v. Leavitt, 24 Ga. App. 650 [1], 101 S. E. 766), unless it was fatally defective for the reason just indicated, we will limit this opinion to a consideration of that question alone.

The clause which was held by the trial court to be fatal to the writing as an enforceable undertaking on the part of the defendant was as follows:

"In case of destruction of our mills, in whole or in part, or stoppage by strikes or other causes, we reserve the right to cancel all or any part of this contract; and the company reserves the right to ship all or any part of this contract as they may deem expedient."

Notice the semicolon. It is insisted, in effect, by the defendant that the clause following that mark of punctuation is to be considered independently of the preceding part of the sentence, and thus as attaching an unconditional reservation of the right to ship only such part of the fertilizers as it might deem expedient. On the other hand, it is contended by...