Davidson v. Consolidated Quarries Corp.
| Decision Date | 20 March 1959 |
| Docket Number | Nos. 37422,37442,Nos. 1,2,s. 37422,s. 1 |
| Citation | 99 Ga.App. 359,108 S.E.2d 495 |
| Parties | DAVIDSON et al. v. CONSOLIDATED QUARRIES CORP. CONSOLIDATED QUARRIES CORP. v. DAVIDSON et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where there is a conflict in the evidence and a verdict for either party is authorized the evidence can not be held to demand a verdict.
2. Where both parties fail to produce as conclusive and satisfactory evidence as appears to be within their respective control, the charge of Code, § 38-119 is appropriate.
3. Where the allegations of a ground of motion for new trial together with evidence set out in the same without allusion to other parts of the record, make it apparent that the evidence quoted in the ground was erroneously excluded and was material to at least one important phase of the case, the ground is complete and understandable.
4, 5. A buyer is not required to purchase from the seller on terms at variance with the contract of sale, in order to lessen the damage he sustains by reason of the seller's repudiation of the sales contract. Especially is this true when the seller attaches the condition that the buyer relinquish the right to hold the seller liable for the breach of the contract.
6. The charge on nominal damages is proper where the evidence authorizes the recovery of the same, though it would, if certain issues were decided favorably to one of the parties sustain a verdict in his favor for a substantial amount.
7. To give a charge stating a correct principle of law applicable to the issues of the case is not error.
8. The burden is upon the party asserting that the opposite party could have lessened his damages, and such proof must include sufficient data to allow the jury to reasonably estimate how much the damages could have been mitigated.
9. A ground alleging error must show wherein the error lies.
10. Where a case is reversed on other grounds, rulings not apt to be invoked upon another trial of the case need not be considered.
11. Grounds of a motion for new trial not complete and understandable will not be considered.
12. The charge to the jury cannot assume a fact, when the evidence as to its existence is in conflict.
13. Where the evidence shows without dispute that the parties agreed as to a particular matter, a witness's testimony as to his opinion which is contrary to the agreement of the parties is not admissible.
14. Where general and special demurrers are overruled, and thereafter the petition is amended but not in a material particular, the demurrers cannot be renewed nor can a motion to dismiss the petition be entertained.
Stone Mountain Grit Company, a partnership composed of Norton A. Davidson, J. Keay Davidson, Jr., Charles L. Davidson, Mrs. Mamie St. J. Davidson, Mrs. Elizabeth L. Davidson and Mrs. Florre Joe E. Davidson, sued Consolidated Quarries Corporation to recover damages for the breach of a written contract between the parties dated August 20, 1943, as follows:
'Consolidated Quarries Corporation
'Blair Building
'Decatur, Ga.
'August 20, 1943
'Stone Mountain Grit Company
'Lithonia, Georgia
'Gentlemen:
'We hereby agree to supply you crushed granite subject to the following agreement:
'Contract period: Expires September 1, 1948.
'Prices: Size #7 (3/8"' for your own use only at list price less ten percent.
All other sizes for your own use only at list prices less thirty percent subject to a minimum net price of seventy-five cents per ton.
Prices for stone that you resell or reconsign will be our regular list prices subject to the 'regular dealers' discount as may be published from time to time.
All prices are F.O.B. Rock Chapel plant, DeKaib County, near Lithonia.
'Terms: Net 15th of month following date of shipment.
'Quantity: Your total requirements whether for your own use or for resale. We reserve the right to ship you all of the size No. 7 we may have on hand or may be making before shipping you any of the other sizes.
'List prices: Will be published from time to time as may be desired. Present price list dated January 1, 1941, copy attached, is now effective. We agree to give you thirty days notice of any increase in list prices.
'Comment: Previous contract void. Acceptance of this contract cancels the contract of April 25, 1939, and all supplements thereto.
'Your very truly,
'Consolidated Quarries Corporation
'G. A. Austin
'G. A. Austin, President
'Attest:
'A. G. Loomis
'A. G. Loomis, Treasurer
'Stone Mountain Grit Company
'C. L. Davidson, President
'C. L. Davidson, President
'Attest:' The petition claimed damages for the defendant's failure to furnish the plaintiff's requirements of crushed stone during the period beginning March 14, 1945, and ending August 31, 1948, for its own use in manufacturing or converting it into chicken grit. After various orders of the court on the pleadings and amendments thereto, on February 20, 1956, the court required the plaintiff to redraft the petition as amended and ordered the defendant to redraft its demurrers, which was done. The redrafted demurrers were heard and on June 27, 1956, the court sustained the demurrers in part and overruled them in part and allowed the plaintiff twenty days within which to amend. The plaintiff did not then amend and on August 27, 1956, the court overruled the defendant's general demurrer and sustained some special demurrers and overruled the others. There was no exception to this judgment. On October 30, 1957, the plaintiff amended the petition by allegations merely increasing the amount of stone alleged not to have been furnished by defendant and increasing the amount of claimed damages. On the same date the defendant filed its new and renewed demurrers to the petition as so amended and on the same date the demurrers were overruled. (The defendant excepts to this judgment by cross-bill of exceptions.) The jury found for the defendant, and the plaintiff excepts to the denial of its new trial as amended.
The petition alleged that on March 14, 1945, the contract sued on was questioned for the first time by an agent of the defendant who denied that there was a contract between the parties and that on April 10, 1945, the defendant wrote the plaintiff a letter asserting that there was no valid and binding contract and that, if the contract was considered an offer to furnish crushed stone, it was withdrawn. The petition alleged that the petitioner elected to stand on said contract and demanded that the defendant perform it according to its terms and that the petitioner ordered from the defendant all of the requirements of its established business for crushed stone for manufacture into grit (and not for resale) until the termination of the contract and that from March 14, 1945, until September 1, 1948, the petitioner stood ready to accept and pay for all stone that might be furnished and delivered to the plaintiff by the defendant pursuant to the said contract. The petition alleged damages to be the difference between the contract price and the market price at Mt. Airy, North Carolina, it being contended that there was no market value at the place of delivery fixed in the contract by which the plaintiff was bound. The petition alleged that the defendant filed a declaratory judgment action in which the jury found that the contract sued on was a valid and binding contract, that the contract was divisible as to stone for resale and for manufacture into grit and that the plaintiff's requirements of stone to be furnished the plaintiff was from 20,000 tons to 80,000 tons per year. The jury verdict was made the judgment of the court in the declaratory judgment case, the judge, in the present case, charged the jury that the findings in the declaratory judgment case were binding in this case and there were no exceptions to such a charge by either party. On the trial the plaintiff sought to show the amount of damages due by showing the amount of grit sold by the plaintiff during the period involved, two tons of crushed stone being required for each ton of grit, and the difference between the contract price and the market price at Mt. Airy, North Carolina, plus freight to Lithonia, Georgia.
The case is here on exceptions of the plaintiff to a judgment overruling its motion for new trial as amended which was filed after a verdict was returned for the defendant. The defendant filed a cross-bill of exceptions complaining of the overruling of general and special demurrers to the petition as finally amended.
Eugene R. Simons, Merrill Collier, Atlanta, for plaintiff in error.
Allen Post, Thomas B. Branch, Jr., Atlanta, for defendant in error.
1. Stone Mountain Grit Company, the plaintiff in error here, will be referred to as the plaintiff, and the defendant in error, Consolidated Quarries, as the defendant.
A very thorough review of the evidence adduced upon the trial is required by the plaintiff's insistence on the general ground and the defendant's contention that the special grounds of the motion for new trial need not be considered because a verdict in its favor was demanded.
As to the plaintiff's contention that the verdict returned in the defendant's favor was not supported by the evidence, suffice it to say, that not only was the evidence in sharp conflict as to vital and controlling issues on which the plaintiff's right to recover depended, but even the amount that the plaintiff would be entitled to recover if the verdict of the jury should have established the defendant's liability could, under the evidence submitted have been fixed at various amounts. So it is obvious that a verdict in the defendant's favor was not demanded.
The defendant vigorously and ably urges that a verdict in its favor was demanded for several reasons. We believe the reasons assigned, most of which were close questions, hard to decide, must be discussed in detail.
First, the defendant insists...
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