Gold Kist, Inc. v. Stokes

• Decision Date: 15 March 1976
• Docket Number: No. 3,No. 50657,50657,3
• Citation: 226 S.E.2d 268,138 Ga.App. 482
• Parties: , 19 UCC Rep.Serv. 1131 GOLD KIST, INC. v. J. W. STOKES
• Court: Georgia Court of Appeals

Page 268

226 S.E.2d 268

138 Ga.App. 482, 19 UCC Rep.Serv. 1131

GOLD KIST, INC. v. J. W. STOKES.

No. 50657.

Court of Appeals of Georgia, Division No. 3.

March 15, 1976.

Rehearing Denied April 28, 1976.

Syllabus by the Court

1. The trial court erred, on an action for breach of contract, in failing to give a requested charge that nondelivery due to a contingency, the nonoccurrence of which was a basic assumption when the contract was made, applies only insofar as the seller has not by contract assumed a greater burden.

2. The evidence in this case establishes that if the defendant seller was excused from performance of the contract, or if the breach of contract is attributable to the buyer, the seller owes nothing, whereas if the alleged breach was chargeable to the seller, the measure of damages is the difference between the contract and market price. The verdict in the sum returned by the jury is unsupported by the evidence.

In April, 1973, Stokes entered into two contracts with the appellant, identical except that one was for the sale and delivery of 1,606 bushels of No. 1 yellow soybeans at $3.10 per bushel and the other for 6,603 bushels at $3.00, to be delivered no later than December 31 to Farmers Mutual Exchange, Sylvania, Georgia. The place of delivery is elsewhere referred to as 'the above Gold Kist, Inc. facility.' The contracts, after stating liquidated damages for nondelivery, have this provision: 'Notwithstanding the foregoing, if the producer is unable to deliver all or any part of the above quantity as contracted solely because of reasons beyond the producer's control, including an Act of God, the producer and Gold Kist, Inc. agree to settle at the difference between the price stated above for the quantity not delivered and the current cash market price for that quantity at the above Gold Kist facility on the date determined pursuant to (a) above,' that being the earlier of either the date of notification of intent not to deliver or the first business date after December 31, 1973.

A delivery of 3,491 bushels was made in October, 1973, but by agreement this was not included in either contract. On November 7 Stokes tendered delivery of 500 bushels at the place specified which was refused because all of Gold Kist's bins were full and it had no place to store the shipment. Two days later there was again room for delivery and storage but it does not appear that the seller was aware of this fact. On November 27 there was an annual meeting at which Stokes and a representative of Gold Kist were present; there is a conflict of evidence on what passed between the two, the representative contending that Stokes told him there would be no more deliveries, and Stokes denying this fact while admitting that there was a joking conversation on the subject.

Two days later, on November 29, some 9,000 bushels of soybeans stored in Stokes' bins were damaged or destroyed by fire. Stokes thereafter tendered 2,600 bushels of the salvage to the plaintiff, which refused them as not in accord with grade specifications. There seems to be no serious contention but that the refusal was justified on this ground.

No further deliveries were tendered. On December 19, 1973, plaintiff filed suit alleging that defendant had repudiated the contract on November 27, and sought damages in the sum of $23,042.51 as the difference between contract and market price on that date. The jury returned a verdict of $3,149.10 and plaintiff appealed. This court initially affirmed on procedural grounds (Gold Kist v. Stokes, 135 Ga.App. 382, 217 S.E.2d 352) following which the Supreme Court reversed our decision (235 Ga. 643, 221 S.E.2d 49), and remanded the case to this court for consideration of the enumerations of error.

R. H. Reeves, III, Millen, Alston, Miller & Gaines, James S. Stokes, IV, Atlanta, for appellant.

Harry H. Hunter, Sylvania, for appellee.

DEEN, Presiding Judge.

1. Code § 109A-2-615 provides in part: 'Except so far as a seller may have assumed a greater obligation . . .: (a) Delay in delivery or nondelivery in whole or in part by a seller . . . is not a breach of his duty under a contract for sale if performance as agreed has been made...