Electric Ry. Co. Of Savannah v. Tenn. Coal

• Decision Date: 16 March 1896
• Citation: 26 S.E. 741,98 Ga. 189
• Parties: ELECTRIC RY. CO. OF SAVANNAH. v. TENNESSEE COAL, IRON & RAILWAY CO.
• Court: Georgia Supreme Court

26 S.E. 741

98 Ga. 189

ELECTRIC RY. CO. OF SAVANNAH.

v.TENNESSEE COAL, IRON & RAILWAY CO.

Supreme Court of Georgia.

March 16, 1896.

Contracts — Construction — Breach — Recoupment.

1. Where a contract is entered into between two parties, by the terms of which one undertakes to sell, and the other to buy, certain articles, a given quantity of which is to be delivered daily for a period not specified, such contract, if no time is fixed by law or usage for its termination, is at the will of either party, and continues in force until one gives notice to the other of an intention to put an end to the agreement.

2. There being evidence from which the jury might have inferred that the sale of coal was made in contemplation of the fact that its breach by the plaintiff might result in damages to the defendant of the character set up in its plea, and there being also evidence authorizing a finding that the defendant had sustained such damages to at least some amount, it was error to pass an order which, in effect, struck the plea, and directed a verdict for the plaintiff for the full amount of the account upon which its action was brought, although the correctness of that account was admitted.

(Syllabus by the Court.)

Error from city court of Savannah; A. H. MacDonell, Judge.

Action by the Tennessee Coal, Iron & Railway Company against the Electric Railway Company of Savannah. From a judgment for plaintiff, defendant brings error. Reversed.

Charlton, Mackall & Anderson, for plaintiff in error.

H. W. Johnson, for defendant in error.

ATKINSON, J. The plaintiff sued the defendant for a balance due upon the purchase price of certain coal alleged to have been delivered by the former to the latter. To this action the defendant pleaded, admitting the correctness of the plaintiff's demand and its liability, in the first instance, for the sum claimed. Further, it pleaded, in substance, by way of recoupment: That it was engaged in running an electric railway. That in the generation of steam it was necessary for it to have considerable quantities of coal. That under the contract previously made, and under which the coal sued for was actually delivered, it had been purchasing coal from the plaintiff to be used in the conduct of its business. That, having learned that a labor strike was soon to occur at the mines of the plaintiff, it made an agreement with the plaintiff, by the terms of which it undertook to deliver certain other coal than that covered by the first agreement, to the amount of three car loads a day. That, in making this last agreement, the defendant called attention to the anticipated strike, and advised the plaintiff that its purpose in purchasing additional coal was to provide against the consequences in the event such a strike should occur. The plaintiffs knew the business in which defendants were engaged; that it was absolutely necessary for them to have coal in the successful conduct of that business; and that, if defendant's supply of coal ever became exhausted, it would suffer serious loss as a consequence. That said strike, if occurring at all, did not occur until after the lapse of nine days from the date upon which the plaintiff undertook to commence to deliver the coal so agreed to be delivered. That plaintiff wholly...