Bush v. Addison

• Decision Date: 24 January 1930
• Docket Number: (No. 19789.)
• Citation: 40 Ga.App. 799,151 S.E. 526
• Parties: BUSH. v. ADDISON.
• Court: Georgia Court of Appeals

40 Ga.App. 799

151 S.E. 526

BUSH.

v.ADDISON.

(No. 19789.)

Court of Appeals of Georgia, Division No. 2.

Jan. 24, 1930.

(Syllabus by Editorial Staff.)

Error from Superior Court, Miller County; M. J. Yeomans, Judge,

Action by C. P. Bush against A. I. Addison. Judgment for defendant, plaintiff's petition for certiorari was overruled, and plaintiff brings error. Affirmed.

J. A. Drake, of Colquitt, for plaintiff in error.

P. Z. Geer, of Colquitt, for defendant in error.

Syllabus Opinion by the Court.

BELL, J. [1] 1. While the law does not require that a suitor in a justice's court shall set forth his cause of action with the same strictness and formality that may be necessary in a court of record, yet where the plaintiff in a justice's court attaches to the summons a petition in which he undertakes to set forth his entire ground of complaint, and the statement therein fails to show a cause of action, it is not error for the magistrate to sustain a general demurrer and dismiss the petition. Atlanta & West Point R. Co. v. Georgia Ry. & Electric Co., 125 Ga. 798, 54 S. E. 753; Atlanta, Knoxville, etc., Ry. Co. v. Shippen, 126 Ga. 784, 55 S. E. 1031; Mayer v. Southern Express Co., 17 Ga. App. 744, 88 S. E. 403.

2. The general rule is that the measure of damages recoverable of a seller for a failure to deliver goods sold is the difference between the contract price and the market value at the time and place for delivery, and profits which a purchaser could have made on a resale to a third person are not recoverable from the seller as damages, unless the latter had notice of and contracted with reference to such contemplated sale by the purchaser. Thus, in a suit for the breach of an alleged contract to sell and deliver cattle, where there was no allegation as to market value, and the sole damage claimed was the difference between the purchase price and a larger amount at which the plaintiff could have sold the property, and there was nothing to show that such resale was in contemplation of the parties at the making of the contract between them, the plaintiff failed to show a right of recovery, and his suit was subject to dismissal on general demurrer. Orr v. Farmers' Alliance Warehouse Co., 97 Ga. 241 (4), 22 S. E. 937; Sizer v. Melton, 129 Ga. 143(7), 58 S. E. 1055; Piedmont Wagon Co. v. Hudgens, 4 Ga. App. 393(2), 61 S. E. 835; Smalls v. Brennan, 14 Ga. App. 84, 80 S. E. 339; Home v. Evans, 31 Ga. App. 370 (4), 120 S. E. 787.

3. Where a suit cannot be construed as...