Knight v. Causby

• Decision Date: 17 November 1942
• Docket Number: 29773.
• Citation: 23 S.E.2d 458,68 Ga.App. 572
• Parties: KNIGHT v. CAUSBY.
• Court: Georgia Court of Appeals

23 S.E.2d 458

68 Ga.App. 572

KNIGHT v. CAUSBY.

No. 29773.

Court of Appeals of Georgia, Division No. 1.

November 17, 1942

Rehearing Denied Dec. 15, 1942.

Syllabus by the Court. [Copyrighted Material Omitted]

Knight sued Causby for damages for breach of contract. The jury returned a verdict for the defendant. The plaintiff's motion for new trial was overruled and he excepted.

The original petition was based on two contracts. The first was between plaintiff and defendant, was executed on October 4 1939, and provided: "The said party of the first part, G. C. Causby, does agree to deliver and sell to any purchaser that said John T. Knight may procure, provided, that said G. C. Causby is satisfied as to the reliability and solvency of said purchaser, not less than 50 gallons of raw milk daily, beginning November 4, 1939 and to be gradually increased up to 100 gallons by January 4, 1940; and at the rate of not less than 100 gallons per day from January 4, 1940 to January 4, 1941, at and for 22 cents per gallon to be paid for every 15 days. The said G. C. Causby shall deliver the milk here referred to at the barn at his home near Pine Chapel in said Gordon County, and said John T. Knight shall receive said milk at said barn and deliver same to purchaser. Said G. C. Causby agrees to enter into contract with purchaser procured by said John T. Knight upon the same terms and conditions as herein set out, but at such price as may be agreed upon by and between said purchaser and said John T. Knight." The contract further provided that the purchaser would pay the contract price of the milk to Causby and Causby in turn would pay Knight the difference between 22 cents per gallon and the contract price. The expense of transporting the milk from Causby's Dairy to the place of delivery to the purchaser was to be borne by Knight. As compensation to Knight, he was to receive all in excess of 22 cents per gallon for which the milk could be sold. The second contract, executed two days later, was between Causby and Knight of the first part, and R. W. Jackson, Lewis W. Jackson, and Milton Jackson, doing business as Jackson's Dairy. The material portions of this contract provided: "That said parties of the first part will sell to and deliver to Jackson's Dairy, west of the City of Cartersville Georgia, beginning October 6, 1939, approximately 50 gallons of sweet milk daily, up to and until January 1, 1940; thereafter said parties of the first part agree to increase delivery up to approximately 75 gallons of sweet milk daily until January 1, 1941; the said Jackson's Dairy agrees to accept said amounts of sweet milk daily and pay therefor 30 cents per gallon, making payments therefor on the 5th and 20th days of each month. All checks for milk to be made payable to said G. C. Causby. It is further agreed between the parties that in the event of strikes, or other act, or acts, over which the parties hereto have no control, preventing the delivery or acceptance of milk, a strict compliance will not be required of either party hereto."

The original petition alleged that the defendant was indebted to the plaintiff $185.44 because the defendant had failed, without legal cause, to fulfill the delivery of milk under the second, or Jackson's Dairy contract. The original petition further claimed that the defendant was indebted to plaintiff $730 because the defendant had failed and refused, without legal cause, to deliver the difference in the amount of milk he contracted to deliver in the first contract of October 4, 1939 between plaintiff and defendant and the amount specified in the Jackson's Dairy contract of October 6, 1939. By way of amendment, in response to a demurrer, the plaintiff further alleged: That under the Jackson's Dairy contract the defendant obligated himself to deliver 50 gallons of sweet milk daily from October 6, 1939, to January 1, 1940, and 75 gallons of milk daily from January 1, 1940, to January 1, 1941; that from October 6, 1939, to January 1, 1940, defendant delivered an average of only 36 gallons per day, and from January 1, 1940, to January 1, 1941, defendant delivered an average of only 73 gallons per day; that as to the difference between the milk contracted to be delivered under the Jackson's Dairy contract and the first contract, he could have sold the difference to Kirton's Dairy, at Rome, Georgia, owned and operated by H. O. Kirton, reliable and solvent, and who could have taken and paid for said difference and who offered to purchase the same at 30 cents per gallon; that plaintiff took this proposed sale to Kirton up with defendant with a view of obtaining an additional contract to take care of said excess amount of milk; that the defendant stated that he could not furnish any additional milk, that he could not furnish all of the milk contemplated under the Jackson's Dairy contract. For this reason plaintiff was relieved of further pursuing the matter regarding said additional milk. Thereafter plaintiff, having performed his part of the contract by procuring a reliable and solvent purchaser, ready and willing to purchase said additional amount of milk, and ready to enter into contract therefor, contended that the defendant thereby became liable to plaintiff at the rate of 8 cents per gallon for said additional amount of milk.

The defendant denied all of the material portions of the petition with the exception of the execution of the Jackson's Dairy contract, and with reference to this contract answered that he delivered all the milk to plaintiff that he was requested to deliver; that he executed the Jackson's Dairy contract and carried out its terms faithfully; that the plaintiff never claimed that he had not delivered all the milk contracted for until after said contract had expired and he had refused to renew the contract with plaintiff; that plaintiff never, at any time, presented to defendant any person or persons who desired to purchase from defendant any milk other than that specified in the Jackson's Dairy contract.

Maddox & Griffin, of Rome, for plaintiff in error.

Y. A. Henderson, of Calhoun, for defendant in error.

GARDNER Judge.

1. Under the pleadings and evidence, the issues which came up for consideration and decision by the court and jury may be stated as follows:

(a) Was the first contract between the plaintiff and the defendant, entered into on October 4, 1939, superseded by the second contract entered into on October 6, 1939, between the plaintiff and the defendant of the one part and Jackson's Dairy of the other part? We will first address ourselves to this question for the reason that the trial court allowed evidence on it and submitted it to the jury, and the jury found this issue against the plaintiff. Did the judge commit error in so doing and was the finding of the jury unauthorized? It will be noted that the first contract was dated October 4, 1939, and was not to become operative until November 4, 1939. It provided that beginning November 4, 1939, not less than 50 gallons of raw milk daily were to be delivered, and the amount was to be gradually increased to 100 gallons by January 4, 1940. It further provided that not less than 100 gallons per day were to be delivered from January 4, 1940 to January 4, 1941; whereas, the Jackson's Dairy contract, which was executed two days later became operative on October 6, 1939, twenty-eight days earlier than the first contract. This contract provided for a 50 gallon daily delivery of milk to January 1, 1940, terminating three days earlier than the period specified in the first contract. The Jackson's Dairy contract provided for an increase in delivery after January 1, 1940, to approximately 75 gallons of sweet milk daily until January 1, 1941, terminating three days earlier than the first contract.

It is the contention of the plaintiff that the court should have construed the contracts, and that this construction should have been to the effect that the Jackson's Dairy contract was in part compliance with and in contemplation of the provisions of the first contract, and that it did not supersede the first contract. It is the duty of the court to construe contracts unless they are ambiguous, in which event parol testimony may be admitted for the purpose of ascertaining the intention of the parties. See in this connection Code, § 20-704; Tarbutton v. Duggan, 45 Ga.App. 31(7), 163 S.E. 298. In our opinion the variance as to dates when the two contracts were to become operative and as to the differences in quantities of milk to be delivered under the different periods of the two contracts, the differences in the dates of termination, and the singular instead of plural being used as to "any purchaser *** said purchaser," were sufficient, under the facts of this case, to authorize the court to submit this issue to the jury and admit evidence thereon. Without detailing the evidence here, it was sufficient to sustain the finding of the jury that in executing the Jackson's Dairy contract the parties intended that it should supersede and nullify the first contract. The defendant so testified. Such may be inferred from the provisions of the two contracts, and the conduct of the parties and circumstances in the case as revealed by the evidence.

(b) The controversy regarding the additional milk as represented by the difference in gallonage specified in the first contract and in the Jackson's Dairy contract is eliminated by the opinion dealt with in division (a) above. At any rate, the jury was authorized to find on this issue that the plaintiff did not procure a purchaser for this additional amount of milk.

(c) This brings us to a consideration of whether the jury was authorized to find that the defendant complied with the Jackson's Dairy contract. It...