Farm Products Co. v. Eubanks

• Decision Date: 15 February 1923
• Docket Number: 13656.
• Citation: 116 S.E. 327,29 Ga.App. 604
• Parties: FARM PRODUCTS CO. v. EUBANKS.
• Court: Georgia Court of Appeals

116 S.E. 327

29 Ga.App. 604

FARM PRODUCTS CO. v. EUBANKS.

No. 13656.

Court of Appeals of Georgia

February 15, 1923

Rehearing Denied March 1, 1923.

Syllabus by the Court.

This was an action by the seller against the purchaser for damages for an alleged breach of a contract, in refusing to accept and pay for a part of the goods sold. The verdict in favor of the plaintiff was supported by evidence, and the court did not err in overruling the motion for a new trial, which contained only the general grounds.

Additional Syllabus by Editorial Staff.

In determining whether there was a breach of the contract sued on by defendant before the action was brought, the jury were not confined to plaintiff's evidence.

The court takes judicial cognizance that October 8, 1920, was on Friday.

Market value of peanuts on one date is some circumstantial evidence of market value on a very near later date in spite of fluctuations of market as it is presumed to remain constant for at least brief periods.

While seller suing for buyer's breach had the burden of proving the market value at the time and place of delivery, he was not confined to the evidence of himself, but could resort to that adduced by the opposite party.

Market value, like any other fact, may be established either by direct or circumstantial evidence.

Defendant could not complain that verdict for plaintiff was for a less sum than was authorized by the evidence.

In seller's action for breach of contract, the jury under Civ. Code 1910, § 4396, are not obliged to allow any interest at all.

Error from City Court of Dawson; M. C. Edwards, Judge.

Action by R. T. Eubanks against the Farm Products Company. Judgment for plaintiff, and defendant brings error. Affirmed.

R. R Jones, of Dawson, for plaintiff in error.

A. L Miller, of Edison, and Yeomans & Wilkinson, of Dawson, for defendant in error.

BELL J.

R. T Eubanks sued Farm Products Company, a firm composed of R. E. McDowell and J. E. Morris, as for a breach of a contract, alleging that on or about October 1, 1920, he entered into an oral contract with the defendants to sell and deliver to them at Dawson, Ga., 25 tons of peanuts at the price of $100 per ton, the same to be delivered "after date of the contract and within the year 1920 as they were threshed"; that between the date of the contract and the 15th day of October, 1920, he delivered, and the defendants accepted and paid for, 14,625 pounds, but that they thereafter failed and refused to accept the remainder. The suit is for the difference between the alleged contract price, which was at the rate of 5 cents per pound, and an alleged market price of 3 cents per pound, "on the time and date that said peanuts were to be delivered * * * and on said date when said contract was breached." The statute of frauds is not involved. The defendants' answer contained only general denials, including a denial of the contract. The jury returned a verdict in favor of the plaintiff. The defendants' motion for a new trial containing only the general grounds was overruled, and this judgment is assigned as error.

It is contended by the plaintiff in error that the evidence does not authorize the verdict for the reasons that the evidence fails to show any breach by the defendants until after the suit was filed, and that there is no sufficient evidence of market value at the time and place for delivery. It is unnecessary to point out any evidence relating to other points.

It appears that the plaintiff delivered peanuts to the defendants on two occasions, including four loads on October 14, 1920. The exact quantity of four loads was not delivered on any other date, so that any evidence relating to the time of delivering "four loads" can refer only to October 14th. The plaintiff testified:

"When I delivered to Mr. Morris those four loads of peanuts on that contract, he said to me, 'I haven't got any more room to put peanuts now,' and he said, 'Peanuts have dropped down so, I don't see how I can stand to take any more, and I just haven't got the room now to put any more peanuts, and you just hold the peanuts for a few days,' and I said: 'Mr. Morris, I am unable to hold the peanuts. I will just keep them down there until you can have room to put them.' And he said, 'You just hold up a few days, and maybe I will have a place to put them.' And we then walked out to the front of the building, and at a place near his office I saw a place that only had a few peanuts in it; and I said, 'Mr. Morris, here is a place you could put the peanuts, all that you have contracted with me for,' and he said he did not want to put the peanuts in with them; that they were some damaged peanuts, and he did not want to mix them with those, and he said, 'You just keep the peanuts a few days.' "

He further testified:

"In a few days after that [referring to the occasion of delivery of the four loads], the next day, I think, the next evening the third day after that I come to Dawson, and went to Mr. Morris's office, and he was unloading peanuts and putting them in on the damaged peanuts he told me were damaged, and I asked him about putting peanuts there where he told me he did not want to put the peanuts in there because those peanuts were damaged, and he said he did not want to mix the good peanuts with them, and he said, 'Well, I have shipped out about 80 or 85 tons,' and I said, 'How about my hauling you the other peanuts now?' that he had room to put them in there, and he said, 'Roy, I cannot take those peanuts,' that that concern in Albany had just laid down on him and would not take the peanuts he had sold them, and that he had the peanuts on hand--I think he said 800 tons or more--and that he could not take those peanuts; that I could stand the loss as well as he could; that he could not carry the loss and that he could not take it. And I said, 'If you don't take them, it will be because 12 men don't decide that you won't have to take them.' And I come on out, and after that I sued him for the loss."

J. E. Morris, one of the defendants, testified:

"Mr. Sauls brought in two loads which amounted to 5,100 pounds, and he brought in four loads amounting to 9,620 pounds, and in each instance I gave him a weight ticket for each wagonload and a check for each transaction, and when he got the checks I considered the transaction closed, and he said to me, 'What are you going to do about the

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