Henry Cotton Mills v. Shoenig & Co.

• Decision Date: 12 February 1925
• Docket Number: 15648.
• Citation: 127 S.E. 238,33 Ga.App. 467
• Parties: HENRY COTTON MILLS v. SHOENIG & CO.
• Court: Georgia Court of Appeals

127 S.E. 238

33 Ga.App. 467

HENRY COTTON MILLS v. SHOENIG & CO.

No. 15648.

Court of Appeals of Georgia, Second Division

February 12, 1925

Error from Superior Court, Pulaski County; Eschol Graham, Judge.

Action by Shoenig & Co. against the Henry Cotton Mills. Judgment for plaintiff, and defendant brings error. Reversed.

H. F Lawson, of Hawkinsville, for plaintiff in error.

L. C Ryan, of Hawkinsville, for defendant in error.

JENKINS P.J. (after stating the facts as above).

1. "Time is not generally of the essence of a contract but, by express stipulation or reasonable construction, it may become so." Civil Code 1910, § 4268 (8). But "time is of the essence of a contract when the parties have expressly so treated it, or when it is necessarily so, from the nature and circumstances of the contract." Sneed v. Wiggins, 3 Ga. 94, 99, 100. "As a general rule a time fixed by a contract within which an option may be exercised is to be regarded as of the essence." "Where the subject-matter of the contract is of speculative or fluctuating value, it is generally held that the parties have intended that time shall be of the essence." 13 C.J. 688. See, also, Emery v. Atlanta, 88 Ga. 321 (1), 329, 14 S.E. 556; Watkins v. Hendricks, 137 Ga. 330 (1), 331, 73 S.E. 581. Where an option or contract for the sale of a commodity having a fluctuating value clearly fixes by unambiguous language a time for performance, and where there is no evidence tending to show that the parties did not intend that time should be of the essence of the contract (see Ala. Construction Co. v. Continental Car Co., 131 Ga. 365, 368, 62 S.E. 160), but the contract and the surrounding circumstances manifestly show that the parties intended that time should be of such essence, the court may so rule as a matter of law. See Augusta Factory v. Mente, 132 Ga. 503 (2), 509, 510, 511, 64 S.E. 553; 13 C.J. 783 et seq. In the instant option or contract for the sale of cotton, having a fluctuating value, in which it was provided that "this agreement is good for 60 days," time was of the essence of the contract, and the rights of the parties to act thereunder, in the absence of a novation or of an express or implied extension of such time, terminated at the end of the period stated. Thus, if the instant suit by the owners for the recovery of the value of cotton stored with the defendant were construed as one upon the contract between the parties, a verdict for the defendant would have been demanded.

2. "When a transaction partakes of the nature both of a tort and a contract, the party complainant may waive the one and rely solely upon the other." Civil Code 1910, § 4407; Stokes v. Wright, 20 Ga.App. 325, 93 S.E. 27. Where a petition is ambiguous in failing to make clear whether the cause of action and remedy relied upon is one sounding in contract or in tort, the courts have applied various rules of construction, according to the jurisdiction sought to be invoked and the facts involved; the general rule being that--

"Where a petition can be construed either as a suit in contract or as an action for a breach of duty arising out of the contract, the latter construction will be adopted," and the petition "will be construed as claiming damages for the tort." Central of Ga. Ry. Co. v. Chicago Portrait Co., 122 Ga. 11(1), 12, 13, 49 S.E. 727, 106 Am.St.Rep. 87;

So. Bell Tel. Co. v. Earle, 118 Ga. 506(5), 511, 45 S.E. 319.

See, also, Owens v. Nichols, 139 Ga. 475, 476, 77 S.E. 635; Buchanan v. McClain, 110 Ga. 477, 35 S.E. 665; Reynolds v. Padgett, 94 Ga. 347, 21 S.E. 570; City & Suburban Ry. Co. v. Brauss, 70 Ga. 368; Lamb v. McHan, 18 Ga.App. 5, 6, 86 S.E. 252; Fine v. So. Express Co., 10 Ga.App. 161, 73 S.E. 35; Howard v. Cen. R. Co., 9 Ga.App. 617, 71 S.E. 1017; Payton v. Gulf Line R. Co., 4 Ga.App. 762, 62 S.E. 469.

In the absence of a special demurrer, however, where the facts alleged are appropriate to support either of two forms of action, the courts will "presume that [the pleader's] purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action." Stoddard v. Campbell, 27 Ga.App. 363 (3), 108 S.E. 311, and citations.

3. There being no evidence as to an express or implied extension of the time fixed by the contract for the purchase of the cotton, the plaintiffs not being entitled to maintain their action as upon the contract for the price fixed thereby, and their petition not seeking to recover as upon a quantum valebat or implied promise to pay, the action could be sustained only as one...