Mills v. Shoenig & Co, (No. 15648.)
| Decision Date | 12 February 1925 |
| Docket Number | (No. 15648.) |
| Citation | 127 S.E. 238,33 Ga.App. 467 |
| Court | Georgia Court of Appeals |
| Parties | HENRY COTTON MILLS. v. SHOENIG & CO. |
(Syllabus by Editorial Staff.)
Error from Superior Court, Pulaski County; Eschol Graham, Judge.
Action by Shoenig & Co. against the Henry Cotton Mills. Judgment for plaintiff, and defendant brings error. Reversed.
The parties in this case entered into the following contract:
Shoenig & Co., owners of the cotton, sued Henry Cotton Mills, setting out the contract by way of inducement, and alleged that the defendant had in storage for the plaintiffs the 10 bales of cotton, accepted in the contract at the price fixed at 10 cents per pound (as to which bales there seems to be no question), and also the 10 additional bales with the option provided in the contract. It is then alleged that the defendant "used and converted to its own use" these bales, "the total value of which is" a stated sum, and that defendant is due plaintiffs, "under said contract, " the difference between said "value" and the $750 advanced to plaintiffs. The court directed for the plaintiffs a verdict which appears to be based solely upon the difference between the amount of advances and the price of the cotton as fixed by the option contract, allowing also a deduction for loss in weight. The defendant in its amended motion for new trial excepts on the general grounds, and specially, to the rejection of testimony, as irrelevant, that the actual market value of the cotton on the date it was used by the defendant was 4 1/2 cents per pound, and also to the exclusion of testimony seeking to show that "a fair, reasonable charge for storage for the 10 bales of cotton between" the time of expiration of the contract and the date the cotton was used was $43, which it is claimed was a proper allowance by way of counterclaim. There appear to have been no communications between the parties after the making of the contract, and nothing to show an express or implied extension of the time fixed thereby. The plaintiffs did not "order out" the cotton. The defendant never notified them that it would use the cotton, but, it seems, merely kept it until June 1, 1922, some three months after the expiration of the contract, and then used it. There was no proof as to the market value at that time, the testimony offered by the defendant that it was only 4 1/2 cents a pound being excluded over its objection and exception.
H. P. Lawson, of Hawkinsville, for plaintiff in error.
L. C. Ryan, of Hawkinsville, for defendant in error.
JENKINS, P. J. (after stating the facts as above). [1-5] 1. "Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so." Civil Code 1910, § 4268 (8). But "time is of the essence of a contract when the parties have expressly so treated it, or when it is necessarily so, from the nature and circumstances of the contract." Sneed v. Wiggins, 3 Ga. 94, 99, 100. "As a general rule a time fixed by a contract within which an option may be exercised is to be regarded as of the essence." "Where the subject-matter of the contract is of speculative or fluctuating value, it is generally held that the parties have intended that time shall be of the essence." 13 C. J. 688. See, also, Emery v. Atlanta, 88 Ga. 321 (1), 329, 14 S. E. 556; Watkins v. Hendricks, 137 Ga. 330 (1), 331, 73 S. E. 581. Where an option or contract for the sale of a commodity having a fluctuating value clearly fixes by unambiguous language a time for performance, and where there is no evidence tending to show that the parties did not intend that time should be of the essence of the contract (see Ala. Construction Co. v. Continental Car Co., 131 Ga. 365. 368, 62 S. E. 160), but the contract and the surrounding circumstances manifestly show that the parties intended that time should be of such essence, the court may so rule as a matter of law. See Augusta Factory v. Mente, 132 Ga. 503 (2), 509, 510, 511, 64 S. E. 553; 13 C. J. 783 et seq. In the instant option or contract for the sale of cotton, having a fluctuating value, in which it was provided that "this agreement is good for 60 days, " time was of the essence of the contract, and the rights of the parties to act thereunder, in the absence of a novation or of an express or implied extension of such time, terminated at the end of the period stated. Thus, if the instant suit by the owners for the recovery of the value of cotton stored with the defendant were construed, as one upon the contract between the parties, a verdict for the defendant would have been demanded.
2. "When a transaction partakes of the nature both of a tort and a contract, the party complainant may waive the one and rely solely upon the other." Civil Code 1910, § 4407; Stokes v. Wright, 20 Ga. App. 325, 93 S. E. 27. Where a petition is ambiguous in failing to make clear whether the cause of action and remedy relied upon is one sounding in contract or in tort, the courts have applied various rules of construction, according to the jurisdiction sought to be invoked and the facts involved; the general rule being that—
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