Robinson v. Belcher, (No. 17953.)

• Decision Date: 19 November 1927
• Docket Number: (No. 17953.)
• Citation: 140 S.E. 412,37 Ga.App. 412
• Parties: ROBINSON. v. BELCHER.
• Court: Georgia Court of Appeals

37 Ga.App. 412

140 S.E. 412

ROBINSON.

v.BELCHER.

(No. 17953.)

Court of Appeals of Georgia, Division No. 2.

Nov. 19, 1927.

(Syllabus by the Court.)

Stephens, J., dissenting.

Error from City Court of Cairo; L. W. Rigsby, Judge.

Action by C. C. Belcher against W. H. Robinson. Defendant's demurrers to the petition were overruled, and defendant brings error. Reversed.

C. C. Belcher brought suit in the city court of Cairo against W. H. Robinson, alleging that about June 10, 1923, he entered into an oral contract with the defendant whereby the plaintiff agreed to sell to the defendant his entire crop of collard seed for that year and to accept upon delivery of the seed payment at 13 cents per pound, and to accept the verbal guaranty of the defendant to pay him, in consideration of the delivery of such seed, such sum, in addition to the payment provided for on delivery of the seed, as would make the total payment equal the greatest price per pound received by members of the collard seed association at Cairo for seed grown that year. He further alleges that the defendant contracted and agreed to pay the plaintiff 13 cents per pound for all of his collard seed grown during that year, and to offer to pay him such additional sum as would bring the entire purchase price up to the greatest price received by members of the collard seed association. He alleges;

That pursuant to the contract he delivered to the defendant 5, 173 pounds of collard seed, and that the defendant's agent, to whom the seed was delivered, furnished him for each wagon load of seed a ticket which provides as follows:

"Cairo, Georgia, June 19, 1923.

"Payable only at office W. H. Robinson. Mr. C. C. Belcher. Commodity: Collard seed.

"Wagon load—gross wt.

Tare wt.

Net wt. 2, 359—price 13¢.

"C. B. W., Warehouseman."

That he received three such tickets, the aggregate weights of the loads therein receipted for being 5, 173 pounds. He further alleges that, when the deliveries were completed, the defendant took up the tickets issued by the warehouseman and paid the plaintiff for all of the seed at 13 cents per pound, issuing to him a writing which is as follows:

"Cairo, Ga., June 30, 1923.

"Bought of Mr. C. C. Belcher, 5173 lbs. collard seeds at 13c¹, $672.49. Credit account $672.49. W. H. Robinson, per R. L. F."

It Is alleged In the petition that the collard seed association at Cairo paid its members 30 cents per pound for seeds harvested from the crop planted in that year, and that the defendant therefore owes the additional sum of 17 cents per pound for all of the collard seed delivered. It is alleged by paragraph 6 of the petition that:

"The contracts or agreements set out in paragraph 1 hereof were either two contracts, else one with two complete clauses and binding obligations; the first being absolute and unconditional, the latter being conditional upon first the performance of the first, then upon price paid by the association, the performance of the first on the part of plaintiff furnishing consideration for the second, and it is upon the latter that this suit is based, the former having been completely performed and fulfilled."

To the petition the defendant interposed a general and special demurrer, contending thereby that the petition failed to set forth a cause of action, and that the allegations showed a valid written contract between the parties, which had been fully performed, and that the suit seeks to vary the terms of the written contract. By the special grounds of the demurrer it is contended that the allegations of paragraph 1, setting out the contract, and the allegations of paragraph 6, above quoted, setting out the plaintiff's construction of the contract and the promise upon which the suit is based are—

"vague, indefinite, and contradictory, in that it is alleged that the suit is based on one or more contracts, and does not in a positive manner allege the cause of action sued on, in that it alleges that the cause of action consists of one contract or two contracts."

To the order of the court overruling the demurrers of the defendant, exception is here taken.

S. P. Cain, of Cairo, for plaintiff in error.

W. H. Duckworth, of Cairo, for defendant in error.

JENKINS, P. J. (after stating the facts as above). [1-3] Counsel for defendant in error, in his able and ingenious brief, and argument, sets forth the contention that, since there can be several independent clauses of a contract, satisfaction of one will in no wise alter or satisfy the others. He cites, in this connection, National Duck Mills v. Catlin, 10 Ga. App. 240, 73 S. E. 418, and Carlton v. W. & A. R. Co., 81 Ga. 531, 7 S. E. 623. In the Carlton Case the Supreme Court held that a person was not bound by his relinquishment of damages based upon a receipt for wages to which he was unquestionably entitled, there being, in such a case, no consideration for the relinquishment. The contention, as applied to the instant case, is that the plaintiff should not be debarred from collecting the alleged balance of the purchase price under one phase of the alleged agreement, because he had accepted the Initial portion of the purchase price under another phase of the contract amounting to an independent obligation. As we see it, the trouble with this reasoning is that the suit is maintained for an alleged unpaid portion of the purchase price of the seed, that what constitutes the purchase price is the only question that the petition seekes to determine, and that this question is settled conclusively by the un-attacked memoranda attached to the petition, amounting to a fully executed valid written contract between the parties, which sets forth the purchase price of the commodity as being that which the plaintiff has already had and received. These memoranda do not undertake, as in the Carlton Case, to extinguish an independent disputed liability in consideration of the satisfaction of another...