Evans v. N. J. Weil & Co

Decision Date21 September 1914
Docket Number(No. 575.)
Citation83 S.E. 207,142 Ga. 429
CourtGeorgia Supreme Court
PartiesROBSON & EVANS. v. N. J. WEIL & CO.

(Syllabus by the Court.)

1. Contracts (§ 10*)—Sales (§ 22*)—Unilateral Contract—Offer to Buy—Right to Enforce.

N. J. Weil, trading under the name of N. J. Weil & Co., instituted suit against R. C. Robson and Samuel Evans, trading as partners under the firm name of Robson & Evans, for breach of contract. The defendant filed a demurrer on general and special grounds, and excepted to the jndaraent overruling it. An answer was also filed. On the trial, after the conclusion of evidence introduced by both sides, the judge, on motion, directed a verdict in favor of the plaintiff for a stated sum as principal and specified interest, and entered judgment thereon. The defendant excepted. Two writings were set out in the petition, as follows:

"Chicago, Dec. 14, 1909. "Dear Sirs: We have this day bought from N. J. Weil & Co., Chicago, 111.:

Article. Delivery. Average. Price.

50000 D. S. extra ribs b/oJany. 30/40 at 13oo CAP and carrying charges of 10 cts. per 100 lbs. additional each month or part thereof. The buyer agrees to deposit with the seller 1/2 ct. per lb. as security for performance of the contract, and, in case of decline in market, such further amount as may be necessary to protect the contract, % ct. per lb. below the market. Subject to the rules of the Board of Trade of Chicago. Robson & Evans."

"Chicago, March 4, 1910. "Dear Sirs: We have this day bought from N. J. Weil & Co., Chicago, 111.:

Article. Delivery. Average. Price.

25000 # DS extra Ribs B/O March 30/33 13.50 CAF and 10 cts. per 100# for each additional month or part of month as carrying charge. The buyer agrees to deposit with them % cent per pound as security for performance of contract, and, in case of decline in market such further amount as may be required to keep contract protected 1/2 cent per pound. Subject to the rules of the Board of Trade Chicago.

"Robson & Evans.

"R. C. Robson."

It was alleged in the petition, as amended, that, by the terms of these writings, Robson & Evans contracted with petitioner to purchase designated quantities of described meat at stated prices per pound. "At the same time and under the same contract, said Robson & Evans agreed to pay a carrying charge of 10 cents per 100 pounds each month thereafter while said merchandise was kept in the possession of the plaintiff; the said Robson & Evans having the right to order out the same or any part thereof at any time at their option." Petitioner held the meat, under the terms of the contract, subject to the order of Robson & Evans, as is specified in the first writing, until October 4, 1910, and the meat, as specified in the second writing, until October 12, 1910, holding the same from the date of the respective writings, subject to the order of Robson & Evans. On the dates last mentioned, Robson & Evans having failed and refused to pay for the meat in accordance with the terms of the contract, petitioner, after having, on September 20, 1910, advised defendants of his intention to do so, sold the meat in open market in the city of Chicago, Ellsworth & Cross of that city becoming the purchasers at the highest and best price obtainable at that time. Before Robson & Evans made any effort or expressed any intention to repudiate the writing, and before petitioner resold the meat or notified the defendants of the intention to do so, they, in pursuance of the writings above set forth, paid petitioner the sum of $625, and the "payment was by plaintiff credited on the contract price of said meat." The price, at the time the meat was sold, was less than the contract price, and the amount sought to be recovered was the sum representing the difference between the contract price and that at which the meat was sold, plus designated sums to cover the stipulated "carrying charges, " with interest on the amounts from the respective dates of resale. Held, standing alone, the writings set out in the petition were not signed by Weil & Co., and on that account were unilateral, amounting to no more than offers to buy. Simpson v. Sanders, 130 Ga. 265, 60 S. E. 541; Mallett v. Walking, 132 Ga. 700, 64 S. E. 099, 131 Am. St. Rep. 226. But it being alleged that both parties acted upon the writings, Robson & Evans paying $625 on the purchase price of all the meat, and Weil receiving the sum as such part payment, and holding the meat subject to be ordered out by Robson & Evans, while the proposal to buy was held open, the feature of mutuality was thus introduced; and the petition was not demurrable on the ground that the writings were without consideration and merely unilateral. Sivell v. Hogan, 119 Ga. 168, 46 S. E. 67; Brown v. Bowman, 119 Ga. 153, 46 S. E. 410; Owenby v. Georgia Baptist Assembly, 137 Ga. 698, 74 S. E. 56, 27 Ann. Gas. 1913B, 238.

(a) This ruling is not in conflict with the decision in Neely v. Stephens, 138 Ga. 305, 75 S. E. 159, where certain bales of cotton were delivered under a contract for a larger number of bales, and the money paid by the purchaser was not part payment of the whole number contracted for, but in full payment for the number delivered.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10;* Sales, Cent. Dig. §§ 39-43; Dec. Dig. § 22.*]

2. Gaming (§ 12*)—Sales (§ 1*)—Gambling Contract—What Constitutes.

An executory agreement for the sale of goods to be delivered at a future date is valid; and such a transaction will not be declared invalid on the ground of being a gambling contract, unless it is made to appear that neither of the parties contemplated an actual delivery, and it was the intention of both that there should be no actual delivery, but on the day fixed for delivery there should be a settlement of differences, based on the market value of the goods on that day. Stewart v. Postal Telegraph Co., 131 Ga. 31, 61 S. E. 1045. 18 L. R. A. (N. S.) 692, 127 Am. St. Rep. 205: Daniel v. Reeves, 139 Ga. 646, 77 S. E. 1067; Mc-Farlane v. Robertson, 137 Ga. 132, 73 S. E. 490. It does not appear from the allegations of the petition that both parties contemplated mere settlement of differences, based on the market value of, without actual delivery of, the meat.

[Ed. Note.—For other cases, see Gaming, Cent. Dig. § 22; Dec. Dig. § 12;* Sales, Cent. Dig. 1, 3-5; Dec. Dig. § 1.*]

3. Amendment—Special Demurrer.

The grounds of special, demurrer were met by a...

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