Irvindale Farms Inc v. W. O. Pierce Dairy Inc, 32149.

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON
• Citation: Irvindale Farms Inc v. W. O. Pierce Dairy Inc, 78 Ga.App. 670, 51 S.E.2d. 712 (Ga. App. 1949)
• Decision Date: 03 February 1949
• Docket Number: No. 32149.,32149.
• Parties: IRVINDALE FARMS, Inc. v. W. O. PIERCE DAIRY, Inc.

51 S.E.2d. 712

IRVINDALE FARMS, Inc.

v.W. O. PIERCE DAIRY, Inc.

No. 32149.

Court of Appeals of Georgia, Division Nos. 1, 2.

Feb. 3, 1949.

Rehearing Denied Feb. 26, 1949.

Syllabus by the Court.

1. The contract referred to and described the notes sued upon and stated the terms and provisions of the sale and the notes referred to the contract and stated that they were given subject to its terms. In these circumstances the notes and contract are to be construed together as constituting one contract.

2. The contract was entire and indivisible and contained a condition precedent to the plaintiff's right to collect the notes; and it was plead and introduced in evidence by the defendant; and before the plaintiff would be entitled to recover in this action, it must appear that it complied with the terms of the contract in furnishing the milk, or had sufficient legal excuse for nonperformance in this respect.

3. (a) The uncontradicted evidence showed that the plaintiff had failed to fully comply with the provisions of the contract in respect to the delivery of the milk.

(b) The evidence was not sufficient to show any waiver on the part of Irvindale Farms as to the grade and quality of milk that was required to be delivered under the terms of the written contract, and the court erred in charging the jury in this respect as complained of in ground 6 of the motion.

4. The contract was not ambiguous, and the court should have construed the contract and instructed the jury as to its terms and meaning, and left it to the jury to determine whether or not the parties had complied with its terms.

5. The provisions in the contract for the cancellation and surrender of the notes in the event of a failure to comply with paragraph 4 of the contract relating to the furnishing of a certain quantity and quality of milk should be upheld and given effect as a provision for liquidated damages, rather than as a penalty or forfeiture.

6. The contentions of the defendant in error in respect to the effect of the agreement effective June 1, 1944, which modified certain provisions of the original contract of November 30, 1943, are without merit.

7. The trial court erred in overruling defendant's motion for a new trial for the reasons stated in the opinion in this case.

FELTON and TOWNSEND, JJ., dissenting.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by W. O. Pierce Dairy, Inc., against Irvindale Farms, Inc., to recover the unpaid principal plus interest and attorney's fees on a series of promissory notes. To review an adverse judgment, defendant brings error.

Judgment reversed.

W. O. Pierce Dairy, Inc., sued Irvindale Farms, Inc., in Fulton Superior Court to recover the unpaid pincipal, plus interest and attorney fees, on a series of notes.

In count 1 of the petition it is alleged (2) that on November 30, 1943, defendant purchased from the plaintiff 15 trucks, 1 trailer, 2 billing machines, and the entire supply and inventory of bottles and crates owned by the plaintiff; (3) that the articles were purchased for an agreed consideration evidenced by a series of 23 notes, due monthly, each for the principal sum of $833, with interest at 5% per annum from November 30, 1943; (4) that the above articles were delivered to the defendant; (5) are now in possession of and have been used by the defendant; (6) that defendant is indebted to the plaintiff in the sum of $3332 principal upon notes number 11, 12, 13, and 14 of the series, each of which is past due, $194.37 interest to February 1, 1945, and the agreed interest rate of 5% thereafter, plus 10% of principal and interest as attorney fees; (7) that a copy of note number 11 is attached to the petition and that notes number 12, 13 and 14 are similar, except as to date of maturity; (8) that each note provides for payment of the principal sum of $833 with interest and all costs of collection including 10% attorney fees if collected by law; (10) that plaintiff has given 10 days previous written statutory notice of its intention to file suit; (11) and that a copy of the attorney fees notice sent to and received by the defendant, on January 8, 1945, is attached. In count 2 it is alleged (13) that in count 1 plaintiff had sued for recovery on notes number 11 through 14 of the series, and that count 2 is for the recovery on notes number 15 through 23 of the same scries; (14) that the failure to pay notes number 11, 12, 13, and 14 constituted an anticipatory breach of defendant's contract to pay for the property, the consideration of said notes; (15) that each note contains a provision for payment of 10% attorney fees if collected by law; (16) that defendant was given statutory notice of the intention to file suit and ask for attorney fees; and recovery is sought in count 2 for the principal sum of $7497, interest of $437.33 to February 1, 1945, future interest at the rate of 5% per annum and 10% of principal, and interest as attorney fees.

Note number 11, a copy of which is attached to the petition, and which, except as to date of maturity, is the same as the other notes of the series, is as follows:

"On or before the 1st day of November, 1944, Irvindale Farms, Inc., for value received, promises to pay W. O. Pierce Dairy, Inc., Eight hundred thirty-three Dollars, with interest from date until paid at the rate of 5% per annum, at the office of the Peachtree Road Office of the Fulton National Bank, with all costs of collection including ten per cent, attorneys fees if collected by law. This note is one of a series of twenty three, due monthly, serially and consecutively and aggregating $19,159.00, given in pursuance and subject to the terms of a contract even date herewith.

"Witness the makers name and seal. "No. 11

"Irvindale Farms, Incorporated,

by Richard Hull President"

A copy of a letter from the plaintiff to the defendant, dated January 5, 1945, signed by the plaintiff's attorney, notifying defendant of its intention to bring suit on the notes, including 10% of principal and interest as attorney fees, is also attached to the petition. The notes and the above letter were introduced in evidence on the trial.

Defendant in its answer to the petition denied that the equipment described in the petition was purchased for an agreed consideration evidenced by the series of 23 notes; or that the equipment was now in the possession of or had been used by defendant; or that plaintiff had given 10 days statutory notice for attorney fees as required by law (although admitting the receipt of the letter described above); and admitted the other allegations of the petition. Further answering the petition the defendant alleged "that the notes sued upon are not unconditional promises to pay the indebtedness therein mentioned, but that each of said series of notes contains the provision that it is 'given in pursuance and subject to the terms of a contract even date herewith;' that simultaneous with the execution of said series of notes the parties executed a contract * * *; that theplaintiff not only sold to the defendant certain trucks and a trailer, two billing machines and a supply of bottles and crates, but also sold to the defendant the business of selling milk at retail, which business was theretofore owned and operated by the plaintiff and which sale under * * * the contract carried with it the right of the defendant to the free and unrestricted use of the name 'W. O. Pierce, singly or in combination, ' in the business of the sale or distribution of milk at retail and wholesale;" that "the plaintiff agreed to discontinue that type of business for a period of five (5) years within a radius of twenty-five (25) miles of the center of the City of Atlanta;" that "the plaintiff * * * agreed to deliver daily to the defendant certain milk * * *, which plaintiff has failed and refused to do * * *; that said series of notes under the terms of said contract were delivered to the Fulton National Bank, Peachtree Road Office, with the authority to collect the same as and when each note became due and payable, but with the particular proviso that the plaintiff fully comply with the obligation set forth in paragraph four of said contract and with the further proviso that if the plaintiff failed to comply therewith said bank was authorized to return such note or notes to the party of the second part as cancelled;" that "by reason of this provision in the contract the plaintiff does not have the legal title and possession to said note or series of notes sued upon nor does it have the legal right to recover thereon in as much as the contract provides for the cancellation of said notes upon the breach of the conditions in paragraph four of the contract; * * * that the plaintiff did not deliver the number of gallons required nor of the grade and butter fat required and plaintiff failed and refused to bottle, cap and hood the milk which was to be sold at retail" and "in addition thereto the plaintiff's milk was not according to the standards approved by the Health Department of the City of Atlanta and of the State of Georgia; * * * that the plaintiff was found, on several occasions, to have adulterated the milk with condensed skim milk * * *;" that "the defendant as a result of the findings * * * advised the plaintiff on innumerable occa sions * * * that it would discontinue accepting milk from the plaintiff unless there was a strict compliance with the contract;" that "the defendant attempted in every way possible to avoid refusing to take any further milk from the plaintiff because the defendant, after purchasing the business from the plaintiff, had expended large sums of money in enlarging its business * * *; that in spite of its having used all means to require the plaintiff to live up to the terms of the contract, the plaintiff did, on November 1, 1944, deliver to the defendant at its plant on Spring Street, in the City of Atlanta, a shipment of milk consisting of approximately seventy (70) ten gallon...