L. P. Gunson & Co. Inc v. Garrett
| Citation | 53 Ga.App. 717,186 S.E. 849 |
| Decision Date | 15 July 1936 |
| Docket Number | No. 25350.,25350. |
| Court | United States Court of Appeals (Georgia) |
| Parties | L. P. GUNSON & CO., Inc. v. GARRETT et al. |
Syllabus by the Court.
1. A demurrer to an answer to a petition in two counts is properly overruled if the matter demurred to presents a good defense to the count to which it applies.
2. Where a plaintiff elects to rely on a particular count of his petition, the case must be tried and the jury instructed on the law applicable to the facts alleged in the count on which the plaintiff relies.
3. A verdict in favor of the plaintiff cannot be set aside at the instance of the plaintiff because of an error in the charge of the court as to the defendants' liability which could not have affected the amount recovered.
Error from City Court of Morgan; J. M. Cowart, Judge.
Suit by L. P. Gunson & Company, Incorporated, against Garrett brothers. To review an order overruling its motion for a new trial, plaintiff brings error.
Reversed.
E. L. Smith, of Albany, for plaintiff in error.
A. L. Miller, of Edison, for defendants in error.
L. P. Gunson & Company, Incorporated, sued Garrett brothers alleging a breach of a contract of sale. The petition was amended by adding a second count, and when the case was tried the plaintiff elected to base its right of recovery on count 2. The second count alleged that on March 9, 1932, the defendants contracted with the plaintiff to buy 100 bushels of oats at $1.50 a bushel to be delivered during the fall of 1932, at Arlington, Ga.; that the defendants breached the contract by notifying the plaintiff not to ship the oats and to cancel the contract; that at the time of such breach and at the time and place for delivery the market price of the oats was 55 cents per bushel, making a difference between the contract price and the market price at that time of 95 cents per bushel; and that the defendants were liable to the plaintiff in the sum of $95. By amendment a copy of the contract was attached.
In answering the original petition the defendants denied all the allegations thereof and alleged that "on the 28th day of July 1932, they notified L. P. Gunson & Company, Inc., in writing not to ship the 100 bushels of oats, therefore to cancel their order, and at that time said oats had not been shipped, therefore should not have shipped said oats"; and that the oats shipped were not the grade that the contract called for; that the oats were to be used as seed oats for planting purposes, were infected with rust, and were not suitable for the purpose intended.
During the trial, the plaintiff having demurred to the answer on the ground that it both admitted and denied the contract, the court with the defendants' consent sustained the demurrer to that paragraph of the answer which denied the contract. The defendants did not answer the second count, but amended their original answer by alleging that the oats for which the order was given were to be used as seed oats and were represented by the agent at the time as being high-grade oats and rust-proof; that although the defendants canceled the order, the plaintiff shipped oats to them in the amount alleged, but they were not the oats ordered, were of an inferior grade, were infected with rust, and were utterly unfit for the uses intended, and the defendants declined to accept the oats shipped because the plaintiff had breached its contract, etc.; and that for the reasons set out the oats were not worth more than 50 cents per bushel, which was the price they brought when sold.
The plaintiff demurred to the original answer and to the answer as amended. These demurrers were overruled and exceptions were taken. The trial was had on April 15, 1935. The plaintiff elected to proceed on the second count of the petition. Evidence was introduced by both parties, and the jury found for the plaintiff the sum of $10 and interest. The plaintiff moved for a new trial, which was refused, and error is assigned on the overruling of this motion.
1. In order to determine whether the court erred in overruling the demurrers to the answer, the state of the case and the dates when the orders were passed must be considered. In the original petition the plaintiff alleged a breach of the sale contract by reason of the defendants' refusal to accept the shipment of oats. In April, 1934, the second count was allowed in which the plaintiff alleged a breach of the contract by reason of the defendants' countermanding the order for the oats. The first count alleged a shipment to the defendants in accordance with the contract; the secondcount said nothing about a shipment. The defendants did not answer the second count. The demurrers were on the ground that the allegations about the inferior quality of the oats shipped were irrelevant, immaterial, and not defensive to the petition. As an answer to...
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...& A.R., 49 Ga.App. 33, 36, 174 S.E. 222; Trammell v. Atlanta Coach Co., 51 Ga.App. 705, 706, 181 S.E. 315; L. P. Gunson & Co. Inc. v. Garrett, 53 Ga.App. 717(3), 186 S.E. 849; Groover v. Cudahy Packing Co., 61 Ga.App. 707, 708, 7 S.E.2d 287; Walker v. Southeastern Stages, Inc., 68 Ga.App. 3......
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Baggett v. Jackson
... ... to the pleadings and evidence. In this connection see Hunt v ... Western & Atlantic Railroad, 49 Ga.App. 33, 36, 174 S.E ... 222; L. P. Gunson & Co. v. Garrett, 53 Ga.App. 717, ... 719(3), 186 S.E. 849; Groover v. Cudahy Packing Co., ... 61 Ga.App. 707, 708(3), 7 S.E.2d 287; Walker v ... ...
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- L. P. Gunson & Co., Inc. v. Garrett