Gray v. Hbass

• Decision Date: 31 January 1871
• Citation: 42 Ga. 271
• Parties: GRAY, BEDELL & HUGHES plaintiffs in error. v. JOHN H.BASS, defendant in error.
• Court: Georgia Supreme Court

42 Ga. 271

GRAY, BEDELL & HUGHES plaintiffs in error. v. JOHN H.BASS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Pleading. Factors. New Trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1870.

So much of this case as does not appear in the motion for new trial, as set forth, is as follows: Bass averred that Gray, Bedell & Hughes, Factors and Commission Merchants, at Columbus, Georgia, on the 4th day of January, 1868, received from him one hundred and ten bales of cotton, weighing fifty-seven thousand four hundred andseventy-three pounds, worth $12,000 00, drew a draft against it for certain advances, at sixty days after date, and, in consideration of their commissions, etc., agreed to ship the same to Liverpool for Bass, and that it should not be sold before the maturity of said draft; and yet, by failing to advise their agents of the contract, they allowed it to be sold, in transitu, and before said draft matured, damaging Bass $5,000 00. In another count, by amendment, he averred that the cotton weighed sixty thousand five hundred pounds and that the contract was, that it was to be sent to Liverpool and not sold till sixty days after its shipment from the port of Savannah, and yet they fraudulently sold it on the 27th of January, 1868, to arrive in Liverpool, on the basis of six and seven-eights pence per pound; whereas, had it been sold as late as, by the contract, it should have been, it would have brought fifteen pence per pound. This was demurred to, because of an improper joinder of counts, but the demurrer was overruled.

The defendants pleaded that in April, 1868, Bass accepted a bill of exchange on Blissey, Brown & Company of Liverpool, for £505 6s. 7d., in full satisfaction of said promises and undertakings, *and further as appears in the motion for new trial. On the trial, Bass testified that defendants had his said cotton, weighing fifty-nine thousand seven hundred and fourteen pounds, being good middlings, and he wished $40 00 per bale advanced upon it if he shipped it to Liverpool. Defendants wished to ship it to Liverpool and said they would arrange for such advance at sixty days, without interest during the sixty days, and with the Liverpool rate after sixty days. They said Bass could hold it as long as he pleased after the maturity of the draft. Bass expressed suspicion of Liverpool houses, to which they replied there was no danger, that they would ship to Brown, Chipley & Company, or Strother & Company Bass told them to ship his to either of said houses. Next day, before the cotton was put out of the warehouse, Bass told Gray, with whom he had been treating as aforesaid, that he would fix a day in the Spring, after the maturity of said draft, on which the cotton should be sold, without regard to its value, because he feared to give any discretion as to the time of selling said cotton. He said if no such positive instructions were given and cotton advanced, his would be reported as sold at the lowest price, and insisted on sending such instructions with the cotton. Gray said such a course was not commercial, that Liverpool could be reached by mail in ten or twelve days and by telegram at once, and direction could be given as wished. On the 28th of January, 1868, Gray advised him that his cotton had been sold to arrive, and Bass at once urged them to telegraph rescinding the sale or that they substitute other cotton for his. No one ever offered to make such substitution. (The Court held that evidence of offer to replace the cotton was admissible only so far as it tended to show Bass' acquiescence in said sale.) He never consented to, or ratified said sale. Defendants would not sign such a receipt as Bass wished, because they would not impliedly acknowledge themselves liable to him for loss, nor would he pay upon their receipted bill lest he should release them. Bass then proposed to pay upon theirreceipting for so much *money paid, leaving the matter of liability open. All that Bass ever received on account of said cotton was $5,000 00.

Upon cross-examination, he said, when he received the account of sales, and the draft of £505 7s. 6d., he made no objections to the sales, but had always expressed his dissatisfaction. About a week after, he paid them $1,500 00 balance due as per their account, because he had been trusted by them with the draft and because, he was advised to pay it and make his claim against them. Bass never paid the revenue tax or any expense on said cotton, he received $4,391 25, and the bill of exchange in March, 1869, of which the net value in currency was over $3,317 92. The receipt was read in evidence as follows: "Columbus, 6th April, 1868, received of John H. Bass, fifteen hundred and thirty 59-100 dollars on account, Gray, Bedell & Hughes." Plaintiff read in evidence a letter of defendant's dated 28th (18th) January, 1868, stating, "We are advised to-day of the sale of your cotton to arrive, at 7¼d. in Liverpool." A witness testified that the cotton was worth in Liverpool as follows: On the 8th of February 1869, 8⁵/₈d., equal to $14,306 46; on the 28th of February, 1869, 9³/₈d., equal to $15,550 50; on the 1st of May, 1869, 12⁵/₈d. equal to $20,941 35. Another witness put the prices as follows for middlings in Liverpool: 10th January, 1869, 7¹/₈d.; 13th February, 8⁵/₈d.; 28th February, 9³/₈d.; 13th March, 10¹/₈d.; 27th March, 10¹/₈d.; 17th April, 12¹/₈d.; 1st May, 12⁵/₈d.; 15th May, 12d.; 29th May, ll¼d.; 12th June, l1d.; and said that ordinary cotton was worth about 1d. less, at said respective dates, than middlings.

Plaintiff read the interrogatories of one Starr, who said his firm received said cotton at Savannah, on the 27th of December, 1867, said to be Bass', and for shipment to Liverpool; that on the 2d of January, 1868, it was shipped from Savannah, consigned to Blissey, Brown & Company, Liverpool. On the 28th of December, 1867, Wilder & Fullarton, business friends of Starr & Roberts, drew a draftagainst this cotton for a sum equal to $5,616 85 on said consignees, and payable *in sixty days. No special instructions as to the dispositions of said cotton were given; it was to be fully advanced upon and take the usual course. On the 16th of December, 1867, Starr & Roberts received a telegram, saying they had one hundred and eighteen bales of cotton, and wished $5,000 00 advanced upon it. Starr & Roberts negotiated with Wilder & Fullarton for the $5,000 00, and sent it the next day; the money was raised on the draft last mentioned, though the draft was not drawn till the cotton arrived. About the 18th of January, 1868, the cotton was sold at 7¼d. for middling, valued at 6⁷/₈d. when it arrived. Starr & Roberts, on 18th January, 1868, advised defendants, and on 20th January 1868, they replied that Bass was dissatisfied, because the sale was made to arrive. On 27th January, 1868, Starr & Roberts offered to have the cotton replaced and hold it, and he thought he wrote thus to Bass as well as to defendants; no response was made to this; the cotton could then have been replaced at the same or a little higher figure; it was, at the date of sale at Liverpool, worth 7⁷/₈d. It arrived in Liverpool between the 10th and 14th of February, 1868, and was then and there worth 8½d. For the defense, Gray testified that no instructions as to the sale of the cotton were given by Bass, but that several days after he had made the advance, which they procured from Starr & Roberts, Bass asked when it would be sold, and Gray replied that it would arrive about the maturity of the draft, and would be sold on arrival to meet the draft, as was usual. Nothing more was said until Bass complained of such sale. Defendants were as much surprised by such sale as Bass, and wrote Starr & Roberts to replace the cotton; they offered to do so, saying they could at a less price than the said selling price, but Bass declined; he saw all the correspondence as it occurred. Cotton declined steadily for several weeks, and Bass made no demand on defendants nor expressed further dissatisfaction tillit began going up. In about four or six weeks defendants received *from said consignees an account of sale, with a letter to them from Bass. By defendants\' books Bass was then in their debt $1,530 00, and the balance due on consignee\'s account of sales was £505 6s. 7d., and defendants drew a draft for that amount and handed it to Bass; he then made not the slightest objection to said sale. About a week after, he came to pay the $1,530 00 and wished a receipt, admitting that the cotton transaction was open; defendants refused to sign such receipt, and gave the one in evidence. He said that defendants got nothing but storage and usual commissions for forwarding; all other expenses were paid by parties who handled it after it left defendants. (These are stated, but parts of them are illegible.) Hughes testified that in the latter part of January, 1868, he was passing as Bass & Gray were talking of this sale, and heard Bass say, "No, let the d—d thing go, " and that he heard no more complaint till the $1,530 00 was paid.

Bass, recalled, said Starr & Roberts did propose to him to buy other cotton, and offering to advance on it, but said he replied that he had had enough of them.

The jury found for plaintiff for $3,831 76, with interest from the 1st of April, 1870. Defendants moved for a new trial upon the following grounds:

1st. Because the Court overruled the demurrer of defendants to plaintiff's declaration on the ground of misjoinder of counts, and on general demurrer, the first being a case for negligence, and the second being in assumpsit for breach of contract.

2d. Because the Court, against the objection of defendants, caused the second plea of defendants, on motion of plaintiff, to be stricken.

3d. Because the Court refused to admit in evidence in reduction of damages, proof to show that defendants offered to replace with cottonof the same...