Kennesaw Guano Co v. Edward O. Miles & Co

• Decision Date: 22 June 1909
• Citation: 64 S.E. 1087,132 Ga. 763
• Parties: KENNESAW GUANO CO. v. EDWARD O. MILES & CO.
• Court: Georgia Supreme Court

64 S.E. 1087

(132 Ga. 763)

KENNESAW GUANO CO.

v.EDWARD O. MILES & CO.

Supreme Court of Georgia.

June 22, 1909.

1. Contracts (§ 296^*) —Performance — Departure from Terms.

Where parties in the course of the execution of a contract depart from its terms, and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement.

[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 296.*]

2. Evidence Authorized Finding.

The evidence authorized the finding in favor of the plaintiff.

(Syllabus by the Court.)

Error from Superior Court, De Kalb County; L. S. Roan, Judge.

Action by Edward O. Miles & Co. against the Kennesaw Guano Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Edward O. Miles & Co. brought suit against the Kennesaw Guano Company for $888.05 principal, on an account for tankage delivered, as stated in an itemized account attached to the petition. The defendant filed its answer, wherein it claimed damages against the plaintiffs because of their failure to deliver to the defendant the amount of tankage which they were under obligation to deliver under the contract between them. The defendant claimed that the plaintiffs were indebted to it the difference between the contract price of the tankage which they failed to deliver and its actual value, and asked judgment against them for an amount as shown by the state ment attached to the answer. The case was submitted to the judge without a jury. He awarded judgment against the defendant, and it filed exceptions. Upon the trial the following contract was introduced in evidence: "Atlanta, Ga., April 1st, 1898. This agreement between the Kennesaw Guano Company and Edward O. Miles & Company, witnesseth: That said Miles & Company may render tallow from butcher bones (which they agree to do for twelve months from May 1st, 1898), on the premises of said company at Clifton, Georgia, on the following conditions: Said Miles & Co. are to furnish all necessary appliances, and make all connections at their own expense, and said company is to furnish steam (at such times as they may have steam on) at the rate of $1.00 for each rendering of not over five hours. Said Miles & Company are to pay, for the use of said premises, $4.00 per month, and in addition thereto said company is to have the option of buying at $8.00 per ton, when dry, all the by-product called tankage obtained in rendering tallow, which is guaranteed to be not less than ten tons per month, and to analyze not less than 4 per cent. ammonia and 35 per cent. bone phosphate. It is understood and agreed that said rendering is to be conducted in such manner as not to be offensive or inconvenient to said company (who are to be the sole judge of this), and the liquor from each rendering is to be sprayed on the pile of ammoniated goods in the pit of said company, without expense to them, and the necessary pipes, etc., for doing this thoroughly are to be furnished and connected by said Miles & Company. This arrangement or privilege may be canceled at the end of any month by said company giving said Miles & Company ten days notice." Indorsed on the contract was the following: "The within agreement is renewed to May 1st, 1900. sub-ject to all the conditions named therein. This February 14th, 1899." The account sued upon by Miles & Co. showed a delivery of tankage by them to the defendant company on the following dates in 1901: February 1st, April 9th, July 18th, and October 1st. It was admitted upon the trial that this account was correct. The account attached to the answer of the defendant showed delivery of tankage under the contract on the following dates: August 1 and September 23, 1898; May 13, 15, September 14, and November 17, 1899; May 15 and September 27, 1900; May 10, 1901; and June 2, 1902. The total amount of tankage shown to have been delivered under this statement amounted to 167 and a fraction tons. The amount which the defendant company claimed it was entitled to have delivered was 410 tons, leaving a balance undelivered of 142 and a fraction tons. It was admitted that the tankage shown by the statement attached to the answer to have been delivered was actually delivered by Miles & Co. Mr. Ashford, the president of the defendant company, testified: "As to what was done at the expiration of the second term of this contract, which was May 1, 1900, there wasn't anything. I can't recall that anything at all was said about it. Edward O. Miles & Co. did not remove their plant from the premises, but they continued there just as they had been doing, operating the plant, rendering tallow, and making tankage. The tankage that was made was delivered to us at' stated times; that is, at irregular times as they had accumulated enough to make a 'weighing, ' as we called it. It was delivered to us when that had been done. There was no difference in the character of the business conducted by Miles & Co. on the premises after May, 1900, and that conducted before that time. They vacated this place October 1, 1901. I don't think they ever gave us any notice when they vacated. They just moved out. I don't remember that any notice was given at all. As a matter of fact, I do not think any notice was ever given. I have been in the manufacturing business about 12 years. As to what is meant by tankage, they gather up bones, scraps, and decayed meats that butchers put aside during the day. All of that has more or less tallow in it. They gather up so many pounds from one butcher and so many from another, so mat every day there was a considerable quantity of It, maybe several wagon loads. Tankage is the stuff that remains after the tallow has been taken out. These bones were put into a steel tank that is air-tight, and steam is turned on, and it is cooked for several hours. When it cools down, the tallow rises to the top and is taken off. The residue is what is called tankage. It is a common product in the fertilizer trade. The large packers in Chicago have it in great quantities, and ship it down here. It is a well-known commodity, and is in demand by fertilizer manufacturers. I was engaged in the fertilizer business and buying it at that time. I am familiar with the market price. The market price of tankage at the mills in Atlanta between the dates of May, 1898, and October, 1901, varied as to grades. There are various grades. Sometimes it runs high in ammonia. That is the important ingredient that is sought in tankage. Tankage with 4 per cent. ammonia and 35 per cent. phosphate would have been worth at the time $13.50 to $14 per ton. That is the minimum price. * * * I do not think there is any doubt about their having delivered to my company all of the tankage they made."

Edward O. Miles testified: "Nothing was ever said to me by Mr. Ashford after the making of this contract until October 1, 1901, about a failure to deliver the tankage. From the time of the execution of this contract, April 1, 1898, down to October 1, 1901, the time the last car load of tankage was delivered, they never said anything to me about demanding that we comply with the terms of the contract as to furnishing 10 tons per month. We delivered all the tankage we had. During that time we made a number of settlements with the Kennesaw Guano Company. Settlements in full between us were made. They paid us in full the amount they owed us at each settlement. We settled, I think, two or three times a year. Whenever the tankage was dry, and the company was ready to receive it, they would notify us. They paid us for the tankage we delivered. These papers handed me are statements they rendered us of our account with them. This settlement was made April 29, 1899. This statement shows the check inclosed for balance of $79.52. That was paid. This statement shows a balance due us of $278.80, and a check was inclosed in the statement. This is a similar statement dated November 10th. This shows a balance of $185.58, which was paid by check inclosed. Here is a similar statement dated January 15, 1900, which shows a balance of $3.99, which was paid by check inclosed." Elliott, a witness for the plaintiff, testified that from May 1, 1898, to October 1, 1901, he held the position of bookkeeper with the Kennesaw Guano Company, and further testified: "Yes; there was money paid to Miles & Co. I think It was paid two or three times a year during this period of three or four years. I think it was in the summer of 1902 that I gave up my position with them. What the Kennesaw Guano Company was paying Miles & Co. was for tankage on these statements."

Mr. Ashford, recalled, testified: "As to whether or not any settlement was made between me and Miles & Co. under this contract between the date of its execution and October 1, 1901, several settlements were made, according to these statements here.

[64 S.E. 1080]

These statements simply represent what tankage was...