Dasher v. Taylor

• Decision Date: 14 April 1921
• Docket Number: (No. 11808.)
• Citation: 106 S.E. 922,26 Ga.App. 700
• Court: Georgia Court of Appeals
• Parties: ROSE & DASHER. v. TAYLOR, LOWENSTEIN & CO.

26 Ga.App. 700

106 S.E. 922

ROSE & DASHER.

v.TAYLOR, LOWENSTEIN & CO.

(No. 11808.)

Court of Appeals of Georgia, Division No. 2.

April 14, 1921.

(Syllabus by the Court.)

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Rose & Dasher against Taylor, Lowenstein & Co. Judgment dismissing the petition, and plaintiffs bring error. Reversed.

Plaintiffs filed a declaration in attachment to recover the purchase price of a tank car of turpentine shipped to the defendants under a written contract. The amount claimed was "eight cents per gallon in bulk below the official closing, Savannah, Georgia, market * * * on date of bill of lading, " June 6, 1919, when the "full tank" car was "loaded" and delivered to the carrier at Ban-nockburn, Ga., for shipment to the defendants at Savannah. The clauses of the contract upon which plaintiffs rely are as follows:

"Place of Delivery.—The turpentine to be delivered into tank cars of the buyer * * * by the seller, all f. o. b. Bannockburn, Ga., free of expenses to the buyer."

"Price.—For turpentine to be eight cents per gallon in bulk, below the official closing Savannah, Ga., market * * * on date of bill of lading when full tank cars are loaded."

"Terms.—The buyer is to remit for proceeds of all shipments promptly after receipt of signed bills of lading and detailed weights."

Defendants demurred to the declaration as originally filed and as amended, upon the ground that the written contract, which was attached to the declaration, did not warrant a recovery of the amount sued for, viz. the market price of the turpentine based upon the Savannah market as of the date of the bill of lading issued when the car was loaded by plaintiffs, on June 6, 1919; but they claimed a lesser liability under other clauses of the contract, viz. the market price based on the Savannah market 10 days after the day they received written instructions from plaintiffs to furnish the tank car in question, which was the price on May 29, 1919. The clauses upon which defendants rely are as follows:

"Tank Cars: Empty tank cars are to be furnished by buyer within a reasonable time after written instructions are given that same are needed and can be loaded promptly. The ten days is to be considered a reasonable time, and if tank cars are not furnished within¹ ten days, the price of said turpentine is to be based on the price of the tenth day after receipt of such written notice by the buyer."

The court construed the contract in accordance with d...