La Grange Grocery Co v. Young & Griffin Coffee Co
| Decision Date | 21 May 1923 |
| Docket Number | (Nos. 13920, 13921.) |
| Court | Georgia Court of Appeals |
| Parties | LA GRANGE GROCERY CO. v. YOUNG & GRIFFIN COFFEE CO. YOUNG & GRIFFIN COFFEE CO. v. LA GRANGE GROCERY CO. |
(Syllabus by the Court.)
The judge did not err in striking the amendment offered to the plea, praying for a rescission of the contract sued on, or in striking the fourth or final amendment, modifying the amount of damages claimed under the first amendment.
Dealing with the main bill of exceptions on the theory that the plea of the defendant was not wholly bad in substance, and that consequently the main issue is to be determined on the main bill rather than on the cross-bill, the judge did not err in directing the verdict for the plaintiff, since under the proof introduced or offered no damages were shown, such as could form the basis of a recovery under the plea of recoupment. Since the verdict was thus demanded, it is unnecessary to consider exceptions not dealt with above.
(Additional Syllabus by Editorial Staff.)
Error from City Court of La Grange; Duke Davis, Judge.
Action by the Young & Griffin Coffee Company against the La Grange Grocery Company. Judgment for plaintiff, and defendant brings error, and plaintiff brings a cross-bill of exceptions. Affirmed on the main bill, and cross-bill dismissed.
J. R. Terrell, of Atlanta, and Moon & Parham, of La Grange, for plaintiff in error.
Lovejoy & Mayer, of La Grange, for defendant in error.
This was a suit on open account, to recover a balance due on the purchase price of certain shipments of coffee. The defendant admitted the receipt of the goods and liability therefor at the price named in the petition, but by its plea as amended sought to set up by way of recoupment damages arising from the plaintiff's alleged breach of certain alleged terms in the contract of sale (1) in failing to give to the defendant the exclusive right of sale of the property in specified counties of the state; (2) in failing to furnish a salesman to work with the defendant's salesmen at regular 60-day intervals in the territory described; (3) in failing, with two exceptions, to advertise the property with the defendant's name appearing as the distributor in the newspapers published at all the county sites within the territory described; (4) in failing to place display advertisements in the windows of retailers in such territory; (5) in failing to send 100 coffee urns to be given away by the defendant as a trade inducement; (6) in failing to ship the goods promptly as agreed; (7) in failing to place bill poster advertisements in the county site towns in such territory. The. defendant alleged that, on account of the breach of the special agreements above set forth, it was damaged in a specified sum, for the reason that at the time the suit was instituted it had on hand a stated amount of the coffee, which was then worth less than the cost price thereof in the amount claimed under the plea of recoupment. By the first amendment to the original plea it was alleged that the coffee thus remaining on hand could have been sold at the time it was received "or shortly thereafter" at a named price, had the plaintiff complied with its said agreements, and that its failure to do so caused the coffee thus to be left upon the hands of the defendant at its depreciated value. By a subsequent final amendment the defendants sought to set up that a part of this coffee was sold after the filing of the suit, so as to reduce the amount of damages claimed by the plea of recoupment to the sum finally named. The plaintiff demurred generally and specially to the plea of recoupment as first amended, and contended that the measure of damages therein set forth was vague, indefinite, and not such as couldconstitute the basis of a recovery. This demurrer was overruled.
The defendant, by a second amendment set up that, prior to the suit, It tendered back to the plaintiff, because of the plaintiff's breach of said promises and agreements, unsold coffee as set out in the original plea, at the invoice price thereof, which tender, after consideration by the plaintiff, was refused on October 28, 1920. By this amendment the plaintiff did not undertake to set up a rescission of the contract, but sought to recover the difference between the invoice price and the market value of the said coffee on the date of refusal, to wit October 28. This amendment was allowed, and was not demurred to. The record fails to indicate, however, that any proof was either introduced or offered tending to show either the amount of coffee on hand or its market value on October 28, such as would constitute a basis for a recovery under this amended plea of recoupment.
The defendant, by a third amendment, offered during the trial, sought to set up a rescission of the contract and prayed for a decree annulling the same, alleging that the plaintiff, in making said special promises and agreements, acted fraudulently and in bad faith, in that it did not purpose and intend to comply with its obligations, and that on the discovery of such fraud the contract became rescinded and annulled upon the defendant's tendering back the unsold stock, as previously set forth. This amendment was demurred to by the plaintiff, the demurrer was sustained, and the amendment ordered stricken. After the introduction of evidence, a verdict in favor of the plaintiff in the amount sued for was directed by the court. The main bill of exceptions assigns error upon the overruling of the defendant's motion for new trial, including, among other grounds, an exception to the direction of the verdict, and also assigns error upon its exceptions pendente lite to the order striking its plea of rescission. The plaintiff, in its cross-bill, excepts to the overruling of its original demurrer to the plea as first amended.
On the trial of the case the defendant submitted evidence...
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