J.H. McKenzie's Sons & Co. v. Consolidated Lumber Co.
| Decision Date | 18 September 1914 |
| Docket Number | 554. |
| Citation | 82 S.E. 1062,142 Ga. 375 |
| Parties | J. H. MCKENZIE'S SONS & CO. v. CONSOLIDATED LUMBER CO. CONSOLIDATED LUMBER CO. v. J. H. MCKENZIE'S SONS & CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a case has never been marked "in default" on the docket, and no order has been taken declaring it to be "in default," an answer to the merits of the case filed at a term subsequent to the appearance term, will not be dismissed because not filed in time. Hall v Tiedeman, 141 Ga. 602, 81 S.E. 868.
While the plea of recoupment was not subject to general demurrer it was subject to special demurrer calling for more specific statements of the elements of damage sought to be recovered.
(a) Other grounds of demurrer to the plea are without merit.
In an action for the price of certain lumber and piling, the defendant set up, by way of recoupment, a claim for damages resulting from a breach of the contract in failing to deliver the materials within the time specified. On the trial it appeared that the defendant had entered into another contract for the construction of certain wharves and sheds for a railway company, in which the materials purchased from plaintiffs were to be used. In the contract with the railway company, there was a stipulation to pay, as liquidated damages, a specified sum for each day's delay in the completion of the structures within the time specified in the contract. The contract between the plaintiff and defendant contemplated the use to which the defendant intended to put the lumber and piling, and contained a provision to the effect that the plaintiff "agrees that, in the event of his failure to complete the entire order in the time specified herein, he will pay to the contractor an amount equal to the losses sustained by the contractor, as liquidated damages." Held: (a) Properly construed, this provision of the contract did not limit the damages recoverable, for failure to deliver the lumber and piling within the time specified, to such amount as might be necessary to reimburse the contractor for any money which he might be required to pay to the railway company as liquidated damages for delay in completing the structures. (b) It was error to rule out evidence introduced by the defendant in support of his claim for damages set up by way of recoupment and to direct a verdict for the plaintiff.
There was no merit in the motion to dismiss the writ of error.
Error from Superior Court, Chatham County; W. G. Charlton, Judge.
Action by the Consolidated Lumber Company against J. H. McKenzie's Sons & Co. Judgment for plaintiff, and defendant brings error, and plaintiff files cross-bill of exceptions. Reversed on both bills of exceptions.
Osborne & Lawrence, of Savannah, for plaintiff in error.
Robt. L. Colding, of Savannah, and Bennet, Twitty & Reese, of Brunswick, for defendant in error.
1. The ruling announced in the first headnote does not require elaboration.
2. The action was brought by the Consolidated Lumber Company of Georgia against John H. McKenzie's Sons & Co. to recover $20,838.09, besides interest, alleged to be an amount due for material furnished under a contract, consisting of lumber and piling to be used by the defendants in construction of certain railroad wharves and sheds. In an answer in the nature of a cross-action, the defendants, admitting the purchase of the lumber and piling described in the petition, set up that the plaintiff did not deliver the articles so purchased "at the times contracted to be delivered, and that by reason whereof, and by reason of the loss of time, it cost plaintiff [defendants] $34,352.37 more to perform the work than it would have done except for this failure upon the part of the plaintiff." Upon such allegation, the defendants sought, by way of recoupment, to recover from the plaintiff a judgment for the sum of $13,514.28, alleged to be the difference between the contract price of the articles furnished and the loss arising out of the delay in making the deliveries. There was a demurrer, called a motion to strike the answer, upon the ground that it did not set forth any defense to the plaintiff's action, or set out any legal offset thereto; and specially that:
"It does not appear how or wherein the alleged failure of the plaintiff to furnish the materials at the times contracted to be furnished cost said defendants $34,352.37 more to perform said work than it would have otherwise done; nor is it alleged what damages defendants sustained by reason of each of such delays; nor is it alleged how or wherein such delays damaged said defendants in the sum alleged in said answer, or in any other sum; nor are any facts alleged to put plaintiff upon notice of what said defendants' proofs would be in these respects."
There were other grounds of special demurrer which need not be stated. The answer of the defendants alleged a breach of the contract and damages flowing from the breach, and was not subject to general demurrer. But the allegations in regard to the delays in making the deliveries, and the damage to defendants flowing from such delays, were stated too broadly, and were not sufficient to withstand the special demurrer calling for more specific statements of the elements of damage, as set forth above. It was erroneous to overrule so much of the special demurrer as called for more specific allegations relatively to the damage set up in the plea of recoupment. Other grounds of demurrer to the plea were without merit.
3. On the trial it appeared that the defendants had been competitive bidders for a contract to be let by the Central of Georgia Railway Company for the construction of certain wharves and sheds; and that, after their bid had been submitted, the amount thereof was reduced on the basis of an opportunity to get the advantage of a bid submitted by the plaintiff to the railway company for furnishing the necessary lumber and piling at a lower price than the defendants would have had to pay elsewhere. Under such circumstances, the contract was awarded to the defendants, and a formal instrument executed between them and the railway company for the construction of the improvements. The thirteenth paragraph of the contract was as follows:
"The contractor...
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