Huggins v. Southeastern Lime 8c Cement Co

• Court: Georgia Supreme Court
• Writing for the Court: COBB
• Citation: Huggins v. Southeastern Lime 8c Cement Co, 48 S.E. 933, 121 Ga. 311 (Ga. 1904)
• Decision Date: 12 November 1904
• Parties: HUGGINS v. SOUTHEASTERN LIME 8c CEMENT CO.

48 S.E. 933

121 Ga. 311

HUGGINS

v.SOUTHEASTERN LIME 8c CEMENT CO.

Supreme Court of Georgia.

Nov. 12, 1904.

PLEADING—DEMURRER — APPEAL — COUNTERCLAIM —-UNILATERAL CONTRACT—SALE-ACCEPTANCE.

1. Where an order sustaining a demurrer to a plea is general in its terms, the judgment will be affirmed, if the plea was properly stricken for any reason set forth in the demurrer, although the bill of exceptions recites that the plea was stricken for a particular reason.

2. The contract relied on by the defendant as the basis of the counterclaim was unilateral.

3. The contract amounting only to an offer to sell, it could not be the foundation of a cause of action until this offer had been accepted.

4. An order for goods made within the time limited in a contract containing an offer to sell constitutes an acceptance, and the seller ia bound to deliver.

5. Failure to deliver would authorize the buyer to recover the difference between the contract price and the market value on the day that delivery should have been made. But if, at the time the offer was accepted, the seller was not notified that the goods ordered had been resold, the buyer would not be entitled to recover either the difference between the contract price and the price of the resale, or damages which he had sustained, growing out of his inability to deliver to the person to whom the goods had been resold.

¶ 5. See Sales, vol. 43, Cent. Dig. §§ 1175, 1190, 1193.

(Syllabus by the Court.)

Error from City Court of Athens; Howell Cobb, Judge.

Action by the Southeastern Lime & Cement Company against J. H. Huggins, doing business as J. H. Huggins & Son. Judgment for plaintiff, and defendant brings error. Affirmed.

The Southeastern Lime & Cement Company sued Huggins, doing business under the name of J. H. Huggins & Son, on an open account for cement alleged to have been bought of plaintiff, on an accepted draft, and on a promissory note. The defendant admitted the correctness of the account, and the execution of the draft and note. By way of counterclaim he alleged that he had been damaged in a given sum by reason of the breach by the plaintiff of a contract of which the following is a copy: "Athens, Ga., Feb. 4th, 1902. This contract is between J. H. Huggins & Son, of Athens, Ga., and the Southeastern Lime and Cement Company, of Charleston, S. C, for the balance of this year. Messrs. J. H. Huggins & Son agree in accepting the agency of the Lehigh Portland Cement to push the sale of same exclusively as their Portland, not purchasing any other brand while the contract is in effect. The Southeastern Lime and Cement Company agreeing in turn to sell their Lehigh Cement in Athens, to Huggins & Son exclusively, in consideration of the above." The prices at which the cement was to be sold to Huggins were stated in the writing, which was signed by both parties. The plea then alleged: Defendant fully complied with all his obligations under the contract, under the terms of which he was to buy no other cement, and was to have the exclusive sale in Athens of plaintiff's brand. The price of cement rose, and plaintiff failed and refused to deliver cement to defendant, and sold to other parties in Athens. It sold to the Lyndon Manufacturing Company, in Athens, in the spring of 1902, two car loads of cement, and such sale damaged defendant in the sum of $100; being the difference between the contract price and the market price of the cement at the time of such sale and delivery. Defendant sold to the Tallassee Power Company, of Athens, a car load of cement, and plaintiff refused to deliver the same to defendant, although repeatedly urged to do so. This cement was sold for $2.40 per barrel, and at such price there was a profit of 15 cents per barrel to defendant. Defendant was unable to comply with Its contract...