Kennedy v. Buckeye Cotton Oil Co.

• Decision Date: 05 October 1922
• Docket Number: 13677.
• Citation: 114 S.E. 79,29 Ga.App. 167
• Parties: KENNEDY v. BUCKEYE COTTON OIL CO.
• Court: Georgia Court of Appeals

114 S.E. 79

29 Ga.App. 167

KENNEDY v. BUCKEYE COTTON OIL CO.

No. 13677.

Court of Appeals of Georgia, First Division

October 5, 1922

Syllabus by the Court.

The contract was unambiguous, there was no issue of fact to be submitted to the jury, and the trial judge properly directed a verdict.

Where cotton seed are pledged to secure a debt, with an agreement that the pawner is "to secure the highest market price" for them, and that, in the event the pawnee is not in the market or unable to meet competitive bids, it will be satisfactory for the pawner to sell the seed to some other person and liquidate the indebtedness with the proceeds of such sale, this necessarily means that if the pawnee is in the market and does meet competitive bids and pays the highest market price for such collateral, he has the privilege of buying the seed, and the taking over of the collateral by the pawnee, under such an agreement, at the highest market price at the time of the sale, and at a time specified in the agreement, is not a wrongful conversion of the collateral.

Additional Syllabus by Editorial Staff.

Under Civ. Code 1910, § 3530, providing that pledgee may sell property after debt becomes due, upon 30 days' notice "unless otherwise provided by statute," where agreement provided that cotton seed pledged as security was to be held only until April 1st, the necessity of 30 days' notice was eliminated, as the contract did otherwise provide.

Error from City Court of Dublin; S.W. Sturgis, Judge.

Suit by the Buckeye Cotton Oil Company against Jerome Kennedy. Judgment for plaintiff, and defendant brings error. Affirmed.

J. S Adams & R. Earl Camp, of Dublin, for plaintiff in error.

Brock Sparks & Russell, of Macon, for defendant in error.

BLOODWORTH, J. (after stating the facts as above).

The entire record in this case raises three issues: (1) Did the trial judge err in directing a verdict? (2) Was there a wrongful conversion of the collateral in question? (3) If there was such wrongful conversion, then what is the proper measure of damages?

The letters between the parties constituted the contract, As the defendant testified: "Our agreement was finally reduced to the letters which Mr. Brock and Mr. Camp have introduced in evidence." The construction of an unambiguous contract is a question for the court. Civ. Code 1910, § 4265. Therefore the question arises: Are these letters (the contract) ambiguous; are they uncertain, doubtful, indefinite, or capable of more than one construction; is the intention of the parties clearly expressed therein? While there was considerable correspondence between the parties, the material portions necessary for the ascertainment of the issues involved are as follows: Letter from Jerome Kennedy to the manager of Buckeye Cotton Oil Company, dated November 23, 1920:

"Yours 22d relative to shipping to your mill sufficient cotton seed to secure my indebtedness and outlining terms, etc. If you will be willing to store these seed until April 1, 1921, without storage charges, and in the event your mill is out of the market or unable to meet competitive bids, and it becomes necessary in order to secure the highest market price to reship these seed,--enter into such arrangements--and agreements as will permit me to reship and liquidate your indebtedness with the returns from the seed so reshipped, then I shall ship you around the amount Mr. Walker and I agreed upon."

Buckeye Cotton Oil Company to Kennedy, November 24, 1920:

"We have your letter of the 23d with regard to storing seed with us. It will be satisfactory for you to ship your seed to us, with the understanding that we will hold them until April 1st, without storage charge, and in the event we are not in the market, or unable to meet competitive bids, it will be satisfactory for you to sell these seed to some other party, and we will gladly ship them out and liquidate your indebtedness to us."

Buckeye Cotton Oil Company to Kennedy, December 28, 1920:

"According to our records you have shipped us for storage three cars of cotton seed containing about 91 tons. On a basis of $25 per ton, which is what we consider the seed about worth, you now have about $2,275 of your account covered with these seed, as collateral. This means that you have on hand about 30 tons more, as I think you told me that you had about 120 tons in your house. Inasmuch as it will take 25 tons more to cover your account, you may ship in to us what you have on hand, and we will store them on the same basis. Please load them out to us as soon as possible, as we are anxious to get in all stored seed. This is very important to us, and we will thank you to give this your prompt attention. If your records do not agree with ours, please advise us."

Buckeye Cotton Oil Company to Kennedy, March 15, 1921:

"The seed market has broken again and they are now at such a low point that the seed which you have shipped us lacks $700 or $800 of covering your account. We would like for you to ship us some more seed to cover your account in full, as they are not worth more than $18 per ton at the present time. From the present outlook we are not going to run our mill much longer than the first week in April, and we will of course want to close out your seed prior to our closing down."

Buckeye Cotton Oil Company to Kennedy, March 20, 1921:

"We tried to get you over the phone today, but we were unable to reach you. The seed market has broken badly and looks as if it will break again, and inasmuch

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