Groover v. Wayne
| Decision Date | 31 January 1874 |
| Parties | GROOVER, STUBBS & COMPANY, plaintiffs in error. v. WARFIELD & WAYNE, defendants in error. |
| Court | Georgia Supreme Court |
[McCay, Judge, was providentially prevented from presiding in this case.]
Statute of Frauds. Part performance. Factors. Damages. Before J. R. Saussey, Esq., Judge pro hac vice. City Court of Savannah. May Term, 1873.
Groover, Stubbs & Company brought assumpsit against Warfield & Wayne for $1,000 00 damages, alleging, in substance, as follows: That on the 11th, 12th and 14th days of April, 1873, they sold to defendants two hundred and twenty-five bales of cotton, to-wit: sixty-seven bales on the 11th, eighty-six on the 12th, and seventy-two on the 14th, at prices ranging from sixteen to eighteen and a half cents per pound; that within a reasonable time after the dates of the sales they delivered to defendants seventy-two bales, fifty-eight bales of which were sold to them on the 11th of April, and fourteen bales on the 14th; that within a reasonable time they tendered to the defendants the remaining number of bales purchased by them; that the defendants, after having received said seventy-two bales, refused to keep and pay for the same and returned them to the plaintiffs; that they refused to receive and pay for the remainder of the two hundred and twenty-five bales purchased by them; that the price and value of cotton declined materially between the dates of these sales and the time of the breaches of the contracts by the defendant, *causing damage to the plaintiffs to the amount of $1,000. Pray process.
The defendants pleaded the statute of frauds.
The evidence established the allegations contained in the declaration. The only written evidence of the sale were various sale tickets or memoranda, which described the cotton sold by marks, and stated the prices, signed by the plaintiffs. As a specimen, the following is attached:
*The seventy-two bales which were delivered to the defendants, the plaintiffs were compelled to take back, as they would not pay for them. Plaintiffs notified the defendants that they would sell the cotton on their account, and hold them responsible for the loss. They finally demanded the purchase price of the cotton on the 18th of April, and on the refusal of the defendants to pay, gave the above notice. The defendants gave to plaintiffs\' cashier an order for the seventy-two bales on the 15th, which he received subject to the approval of his principals. Matters thus stood until the 18th. Cotton had, in the meantime, declined fully one-half cent per pound. The weights of the bales were shown, but unnecessary here to be set forth. The cotton was consigned to the plaintiffs for sale. At the time of the purchase by the defendants the various consignors were notified. They were also informed of the subsequent action of the defendants in the premises, and that it was the intention of the plaintiffs to institute suit for the damages sustained therefrom, and that they should receive their pro rata s, hare of the recovery. The cotton was sold by sample, which were delivered to the defendants.
Other issues were made by the pleadings and evidence, not material to be herein embraced.
The Court charged the jury, 'among other things, as follows:
1st. That the sale tickets of the 12th and 14th of April, not being signed by the defendants, nor by any one by them lawfully authorized, are not sufficient memoranda in writing to take this case out of the statute of frauds.
2d. That the plaintiffs themselves must actually have sustained damages in order to recover.
3d. That the measure of damages in this case will be the difference between the contract price of the cotton and the price on the day of the breach.
To each of the aforesaid charges plaintiffs excepted. The jury found for the plaintiffs $19 33. They assign errorupon the above grounds of exception.
*Howell & Denmark, for plaintiffs in error.
1st. The action is properly brought. Plaintiffs in error have a right of action on these contracts; because,
(a) They are factors, contracting on their own credit.
(b) The contracts are made with them in their individual names. (The Court charged that the plaintiffs themselves must actually have sustained damages in order to recover:) Code, sec. 2209, par. 1, 3; 12 Ga., 578; Story on Agency, sees. 112, 393, 3b6, and references; 2 Par. on Cont., 2d Ed., 84, and references; 4 Mass., 257; Smith on Mer. Law, 209.
(c) As between factor and vendee, the former is sole owner of the goods: 1 Cowen, 645.
(d) For every legal right there is a legal remedy: Code, sees. 2243, 3250; 4 Ga., 264.
2d. Statute of frauds.
(a) The memoranda in writing, though not signed by thedefendants, nor by any one by them lawfully authorized, are sufficient to take the contracts out of the statute of frauds, because the defendants accepted them as evidences of the contracts. (The Court below refused so to charge:) 1 Ga., 220; 25 Ibid, 391; 6 Cowen, 448, and cases cited;)7 Barb., 613; 2 Caine\'s, 117; Vol. 1, Book 2, Chitty\'s Blackstone, 448, note 15; 14 Howard, 456.
(b) If memoranda in writing are not sufficient to take the contracts out of the statute of frauds, the acceptance and actual receipt by the defendants of a part of the cotton sold are sufficient: Code, sec. 1950, par. 7.
(c) Further, there has been performance on one side. Side of plaintiffs accepted by the defendants, in accordance with the contracts: Code, sec. 1951, par. 2.
(d) Again, there has been such part performance of the contracts by the plaintiffs as would render it a fraud of defendants' refusing to comply: Code, sec. 1951, par. 3; 6Ga., 623; 14 Ibid., 685; 30 Ibid., 98; 41 Ibid., 71, 75.
3d. Measure of damages. The Court charged that "the measure of damages would be the difference between the contract *price of the cotton and the price on the day of the breach."
(a) Under the facts of this case, the proper measure of damages is the actual loss on the resale of the cotton: Code, sec. 2940; Sedgwick on Meas. Dam., marg. p. 281, and notes; 3 Par. on Cont., 5th Ed.. 155, 209.
4th. Verdict is contrary to the law and the evidence.
(a) Damages are given as compensation for the injury sustained: Code, sec. 2940; 3 Par. on Cont, 155.
(b) Where there are rules by which damages maybe measured, the value of which may be ascertained by evidence, a new trial will be awarded if the finding be contrary to the evidence: 7Ga., 204; 10 Ibid., 37.
(c) Does the evidence sustain the verdict? 4 Ga., 193, 438, 439; 21 Ibid., 69; 22 Ibid., 103, 582; 24 Ibid., 591; 34 Ibid., 328.
5th. Verdict contrary to the charge of the Court as to measure of damages: 9 Ga., 408; 7 Ibid., 204; 10 Ibid., 37.
6th. Charge of the Court calculated to mislead the jury: 12Ga., 100; 15 Ibid., 258; 19 Ibid., 335; 25 Ibid., 184; 30 Ibid., 241.
7th. Verdict is so small as to justify the inference...
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...The measure of damages was the difference between the contract price and the market price on the day of the breach. Groover v. Warfield, 50 Ga. 645 (4). The plea alleges, in effect, that the defendant was compelled to go into the market and buy a number of boxes equal to those which the han......
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McCaw Mfg. Co. v. Felder
... ... The measure of ... damages was the difference between the contract price and the ... market price on the day of the breach. Groover v ... Warfield, 50 Ga. 645 (4). The plea alleges, in effect, ... that the defendant was compelled to go into the market and ... buy a number of ... ...
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Morrison v. M. Finkovitch Inc, (No. 17634.)
...theory that the seller, on the rejection of the goods, may take them into the open market and obtain the current price for them. Groover v. Warfield, 50 Ga. 645. It thus seems that the rule just referred to would be inapplicable where the purchaser, instead of merely refusing to accept the ......
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Morrison v. M. Finkovitch, Inc.
... ... the rejection of the goods, may take them into the open ... market and obtain the current price for them. Groover v ... Warfield, 50 Ga. 645. It thus seems that the rule just ... referred to would be inapplicable where the purchaser, ... instead of merely ... ...