Fontaine v. Baxley
| Decision Date | 27 August 1892 |
| Citation | 17 S.E. 1015,90 Ga. 416 |
| Parties | FONTAINE v. BAXLEY et al. BAXLEY et al. v. FONTAINE |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. After part performance, to the extent of going to New York and opening business, mutuality is not wanting in a contract which stipulates that one party shall go to that city, and there open and conduct a business on his own account for the sale of a commodity not an article of general commerce, and that the other party shall furnish and deliver to him, at a specified price, so much of the commodity, not exceeding a given quantity monthly, as he (the proprietor of the new business) shall pre-engage to his customers during the period of one year, the mode of conducting the new business contemplated being that the proprietor of that business is to discover purchasers, make binding contracts with them, and then other and receive enough of the commodity from the other party to fill such contracts.
2. In consequence of provisions of the Code, §§ 3261, 2909, set-off and recoupment are substantially alike, and do not differ in their effects on the result of the suit. For this reason matter which is technically proper for one of these defenses may be pleaded as the other, and, when so pleaded, may be proved by evidence competent to support either form of plea. Though the plea as one of recoupment was defective, in wanting allegations identifying the contract sued on as a part of the contract described in the plea, and the breach of which by the plaintiff is alleged, to the defendant's damage, yet, as the court sustained the plea, and the matter of it would, under the Code, be good as a plea of set-off the judgment sustaining it will not be reversed. Its defects as a plea of recoupment are amendable, and it can be amended at any time.
3. Code, § 2950, declares that "any necessary expense which one of two contracting parties incurs in complying with the contract may be recovered as damages." When this applies in behalf of a defendant, a plea which alleges the breach of a contract by the plaintiff, sets out that the defendant incurred expenses in performing on his part, and alleges specific facts, from which it is fairly inferable that some or all of the expenses were necessarily incurred, is good in substance; but, when demurred to specially for failure to itemize the expenses, it should be amended so as to give the plaintiff reasonable notice of the substantial particulars constituting such claim.
4. Where performance of a contract by the defendant was to be at his own expense, he cannot recoup or set off against the plaintiff both the expenses incurred and full damages otherwise sustained on account of the breach complained of. Where both matters are pleaded, the defendant should be required to elect between them at or before the trial.
5. The damages suffered in consequence of breaking up pending overtures and negotiations for pre-engaging the commodity at the time notice was given by the party who undertook to make delivery that no further deliveries would be made are not speculative, nor too remote, provided it be shown by evidence that certain contracts pre-engaging the commodity would, if not thus broken up, have been made and complied with, and that the difference between cost and net proceeds in each case would have been a fixed sum.
6. On the facts in evidence, the defendant below, plaintiff in error here, was chargeable with the disputed item as to storage.
Error from city court of Columbus; J. L. Willis, Judge.
Action by Baxley, Bowles & Co. against George H. Fontaine for balance on account. Judgment for plaintiffs. Defendant brings error. Plaintiffs file a cross bill of exceptions. Judgment reversed. Affirmed on cross bill.
After part performance to the extent of going to New York and opening business, mutuality is not wanting in a contract that one party shall go to that city, and there conduct a business for the sale of a special commodity, and that the other shall furnish him, at a specified price, so much of the commodity as he shall pre-engage to his customers during one year.
The following is the official report:
Baxley Bowles & Co. sued Fontaine for a balance claimed to be due on an account for cross-ties, including a charge of $232.50 for storage on ties in Brunswick. The defendant's first plea besides that of the general issue, set up that, in so far as the ties were delivered, they were delivered in pursuance of a special contract between the plaintiffs and himself whereby the plaintiffs agreed to furnish him, delivered free on board ship at Brunswick, 50,000 ties of a certain description, all to be delivered between September, 1889, and July, 1890, for which the defendant agreed to pay a certain price 60 days after delivery of each ship load free on board at Brunswick, less 10 per cent. of such amount, which it was agreed the defendant should retain as guaranty of the fulfillment of the contract, to be paid the plaintiffs only after full completion of the contract; that, in pursuance of the contract, the plaintiffs did deliver to him f. o. b. at Brunswick a certain number of ties; that from time to time, at the special request of the plaintiffs, and as an accommodation to them, he made advance payments on account of the several shipments before the same were due and payable; that, in order to do this, it became necessary for him to borrow from bank at interest, upon faith of the several cargoes, the amounts so respectively paid, and also to insure said cargoes, all of which was well known to the plaintiffs, who, in consideration of such advance payments, agreed to repay him the amounts so by him paid on account of interest and insurance, (the amounts of the advances, interest, and insurance being itemized;) and that, of the gross number of ties shipped, 729 were rejected in New York, according to the contract, and on these the defendant had paid freight from Brunswick, which payment the plaintiffs became and were liable to repay; wherefore he pleads as a set-off, against the amount for which he became liable for the accepted ties, the amounts paid by him for insurance and for freight on the rejected ties, as well as the total of the advance payments and interest. In his second plea he denies that he is indebted to the plaintiffs on account of storage of ties in Brunswick. The third plea alleges as follows: "On or about March 10, 1889, the defendant entered into a contract with the plaintiffs whereby they agreed to furnish him with such number of cross-ties as might be necessary to fill any contract he might thereafter make for supplying ties to railroad companies, not to exceed 50,000 ties a month, for a period of 12 months after he should have closed his first contract with such railroad companies, which ties were to be of certain stated dimensions and for certain prices. All were to be delivered as called for, free on board ship at Brunswick, subject to New York inspection. At the time of this contract he notified the plaintiffs that he desired to enter into it for the purpose of submitting bids to, and entering into contracts with, eastern railroad companies to supply them with cross-ties; that such was the business he proposed to undertake and carry on; and that he would call for the ties to be delivered according to contract as he might be required to deliver them to the railroad companies with which he should contract,--all of which was specially brought to the knowledge of, and well understood by, the plaintiffs. In consideration of the obligations assumed by them, he agreed to go to New York and negotiate the sale of ties to the railroad companies centering there, and thus secure contracts for the furnishing of ties, all of which should be supplied by the plaintiffs at the prices and upon the terms named. They were solicitous to have him undertake the business, since, by reason of his acquaintanceship and influential connections, they anticipated that he would be successful, and thus open a market for their production. Relying upon the faith of said contract, he went, in the summer of 1889, to New York, where he opened an office for the sale of ties, and labored earnestly, ardently, and successfully to establish his business, to which end he spent four months or more in New York, at an expense of $1,500 or other large sum. He was constantly in communication with the plaintiffs, who knew that he was expending much labor, time, and money in consideration and upon the faith of his contract with them. Relying upon the same, he submitted bids for furnishing ties to the following railroad companies at the prices stated: New York Central & Hudson River Railroad, 50,000, at 55 cents; Central Railroad or New Jersey, 50,000, at 58 cents; Delaware, Lackawanna & Western Railroad, 30,000, at 62 cents; New York, Lake Erie & Western Railroad, 50,000, at 53 cents; New York, Ontario & Western Railroad, 50,000, at 49 cents. The bids to the first two above named were each accepted, and contracts therefor awarded to defendant. The contract with the New York Central & Hudson River Railroad has been fully performed and executed. He was assured by officials of the last three named companies that his bids were the lowest and best that had been submitted, and that the same would be accepted and the contract awarded him at the proper time. He also made bids to the Pennsylvania Railroad for 50,000 ties, to the New York & Northeastern for 30,000 ties, to the West Shore for 50,000 ties, and to the Rhode Island Railroad for 30,000 ties, all of which bids, if accepted, would have yielded him large profits, and some of which would have been accepted, had not he been compelled to withdraw all bids because of the breach of contract by the plaintiffs as hereinafter specified. While...
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