Mill v. Southern Brighton Mills

• Decision Date: 25 June 1934
• Docket Number: No. 23884.,23884.
• Citation: 49 Ga.App. 390,175 S.E. 665
• Parties: TABER MILL. v. SOUTHERN BRIGHTON MILLS.
• Court: Georgia Court of Appeals

49 Ga.App. 390

175 S.E. 665

TABER MILL.

v.SOUTHERN BRIGHTON MILLS.

No. 23884.

Court of Appeals of Georgia, Division No. 2.

June 25, 1934.

Rehearing Denied Aug. 13, 1934.

Syllabus by the Court.

The verdict in the plaintiff's favor being authorized by the evidence, and none of the special grounds of the motion for a new trial showing error, the trial judge properly overruled the motion.

Error from Superior Court, Floyd County; James Maddox, Judge.

Attachment proceeding by the Southern Brighton Mills against the Taber Mill. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Cook, Brownell & Taber, of New Bedford, Mass., and Maddox, Matthews & Owens, of Rome, for plaintiff in error.

H. J. Lyall, of New York City, and Barry Wright, of Rome, for defendant in error.

SUTTON, Judge.

1. This is the third appearance of this case in this court. The defendant filed its demurrer to plaintiff's declaration in attachment and the trial court overruled the same. A writ of error excepting to that judgment was brought to this court, where it was held that the demurrer was good in so far as it questioned the right of recovery by the plaintiff because of the alleged want of tensile strength in the yarn; there being nothing in the contract sued on that fixed any required tensile strength for the yarn in question. The decision of this court further held that the declaration in attachment was good in so far as it sought to recover of the defendant for beams and freight. The judgment of the trial court overruling the demurrer was reversed. Taber Mill v. Southern Brighton Mills, 41 Ga. App. 630, 154 S. E. 191. The plaintiff amended its declaration in attachment by setting forth that the contract should be interpreted in the light of the universal custom of the trade, and with the technical and special meaning given to words by the trade, and according to the intention of both parties at the time the contract was made, so that the contract should be taken to set forth a requirement as to tensile strength of not less than 85 pounds for a 22.60 yarn. The amendments were to the effect that while the yarn contracted for was size 22.60, and therefore of a different size from either the 20 or 23 yarn specified in the previous contract No. 3575, yet the strength specification of either a 20 or 23 yarn, under the universal custom, usage, and understanding of the trade, was sufficient to fix and determine the strength specification of a 22.60 yarn of the same quality at not less than 85 pounds, as contended in plaintiff's action; that the number given is the number of hanks of that size it takes to make a pound; a hank is always 840 yards, and size-20 yarn is therefore of a size that takes 20 hanks to make a pound; it takes 23 hanks to make a pound of No. 23 yarn, and it takes 22.60 hanks to make a pound of No. 22.60 yarn. The amendments further set forth that it is universally known in the trade, and is a part of the customs of the trade, that where the strength of a certain size yarn is known, the strength of a yarn of different size but of the same quality is also known with mathematical certainty, under a regular known formula, that is, multiply the number by the known strength and divide this result by the number of the yarn the strength of which is to be determined. For instance, a. 20 yarn has a known strength of 100 pounds; 20 times 100 is 2, 000. To determine the strength of a yarn of the same quality, but No. 22.60, divide 2, 000 by 22.60. The result Is 88 plus, which is the required strength of 22.60 yarn of the same quality as No. 20 yarn testing 100 pounds. The amendments set forth that plaintiff, on seeing that the seller had stricken the figures "85" from the provisions of the contract specifying tensile strength, nevertheless accepted the same, knowing that it made no change in the contract except to slightly increase the tensile strength from 85 pounds to 88 pounds plus. On that trial of this case in the lower court, the court sustained defendant's demurrer to the declaration as thus amended, and directed a verdict in favor of the defendant on its counterclaim filed in said case. The defendant contended that the plaintiff's various amendments to the declaration were only an effort to have the court rewrite into the contract the provision as to tensile strength, which the parties specifically eliminated from the contract before it became effective. According to the defendant's contention, the contract as entered into therefore contains no requirement whatsoever as to any degree of tensile strength, and the plaintiff was not authorized to reject the shipment, irrespective of any sort of deficiency in that respect. However, the plaintiff's contention is that while the specific provision as to tensile strength was stricken by the seller before the contract was accepted, the other provision, written into the contract and remaining a part thereof, to the effect that the yarn was to be of the same quality as that furnished on contract No. 3575, must be taken, when construed with the universal customs of the trade and the technical and special meaning of the words as used therein, to require a quality of yarn of a tensile strength capable of mathematical determination; that quality includes tensile strength; and, while under the pleadings as presented at the first hearing there was nothing set forth which would afford a basis for the determination of the tensile strength required, yet under the amendments setting forth the universal customs of the trade, not only is the contract one such as requires the quality of yarn to measure up to some degree of tensile strength, but is one where the tensile strength can be mathematically determined as being more than 85 pounds. Thereupon this court again reversed the lower court. The above is practically quoted from the opinion of this court when it was here the second time.

Southern Brighton Mills v. Taber Mill, 44 Ga. App. 513, 162 S. E. 515. The case went back for another trial in the lower court. The trial resulted in a verdict for the plaintiff, the defendant moved for a new trial, the motion was overruled, and to this judgment defendant excepts.

The defendant earnestly insists that the trial judge erred in overruling its motion for new trial upon the general grounds. The defendant contends that the evidence does not show that in the transaction in this ease, there was a usage or custom in the trade so generally known, so usual, so customary, and so generally practiced by those engaged in the business, as must have been and was in the minds of the parties to this contract, so as to form, by implication, a part of the contract. "The custom of any business or trade shall be binding only when it is of such universal practice as to justify the conclusion that it became, by implication, a part of the contract." Civil Code 1910, § 1 (4). Under the ruling of this court when the case was here the last time, it was held that the contract, under the pleadings tiled by the plaintiff, required a definite tensile strength, and that if the allegations of the amendments to the declaration, as to usages and customs of the trade and the meanings of words in the trade, were sustained by evidence on the trial, a verdict for the plaintiff upon this theory would be authorized. The evidence on the trial of the case, though conflicting, tended to sustain the allegations of the declaration in attachment, as amended, to the effect that the contract involved in this case required that the yarn ordered from the defendant by the plaintiff should have a tensile strength capable of mathematical determination, although the Taber Mill refused to sign the contract with the clause therein that, "Yarn to test not less than 85 lbs. for standard 120 yd. reeling, " and the same was stricken; the clause that the "Yarn to be of same quality as that furnished on Brighton Mill contract 3575" being left in the contract. The court gave in charge to the jury the provisions of the above section of the Code, and correctly added: 'To make usage good, it must be known, certain, uniform, reasonable, and not contrary to law. The custom need not be so universal as to embrace every transaction of the sort; it is enough if it be so usual, so customary, so generally practiced by those engaged in the business, that exceptions here and there will only serve to establish the habit of the trade. I charge you that even though you may find that there is a custom or usage in the trade, as contended by the plaintiff, and that the same is certain, definite, reasonable and generally known in the trade, still I charge you that such a custom or usage would not be binding in this case, if you find from the evidence that the parties did not contract with reference to such usage or custom, or if the same was excluded expressly or inferentially, or if you find that the plaintiff did not recognize or apply such a custom or usage in the conduct of its own business." Under the facts of this case, with the foregoing charge of the court to guide them, and it appearing that the yarn did not measure up to the tensile strength of that furnished the Brighton Mill under contract 3575, the verdict of the jury in this case in favor of the plaintiff was authorized by the evidence, and the court did not err in overruling defendant's motion for new trial upon the general grounds.

2. The court did not err in admitting in evidence a letter to the plaintiff from J. M. Prendergast & Co., who were brokers handling the transactions between plaintiff and the defendant, dated June 19, 1928, in which it was said: "We also feel for your own protection that you are perfectly justified in setting aside the five (5) sample beams from the Taber Mill so that you will be covered on future shipments." While this letter had reference to the former contract No. 3575 between the plaintiff and the defendant, yet the contract sued on in ...