Ryals v. Livingston

• Decision Date: 23 February 1932
• Docket Number: No. 21510.,21510.
• Citation: 163 S.E. 286,45 Ga.App. 43
• Parties: RYALS. v. LIVINGSTON.
• Court: Georgia Court of Appeals

45 Ga.App. 43

163 S.E. 286

RYALS.

v.LIVINGSTON.

No. 21510.

Court of Appeals of Georgia,

Division No. 2.

Feb. 23, 1932.

Syllabus by the Court.

1. In a suit for damages for a breach of contract, where the complaint is that the de fendant failed and refused to deliver to the plaintiff an automobile, in pursuance of an agreement for an exchange of cars, under which the defendant had received the plaintiff's car at a stipulated value, the plaintiff was not entitled to recover as his damages the value of the automobile which he had delivered to the defendant in the exchange, but his damages would be the market value of the automobile which he should have received, but did not receive, to be determined as of the time and place of delivery as fixed by the contract, less the balance to be paid therefor. The petition alleged no recoverable damages, and was subject to the general demurrer interposed. The court erred in not sustaining the general demurrer and dismissing the petition.

2. The court erred in not permitting the defendant to testify that he "made the trade on the idea that he was to receive his commissions, " and also in excluding the defendant's evidence to the effect that it was the custom of a certain motor company, in dealing with its agents, to require them to forfeit a portion of their commissions on sales beyond the limits of their territory. The defendant pleaded and contended that, as a dealer in automobiles for such company, he was induced to trade cars with the plaintiff by fraudulent representations on the part of the plaintiff that be was a resident of the defendant's territory, and the proffered evidence was admissible for the purpose of showing the materiality of the representations, and damage thereby.

3. The court in charging the jury committed error in giving to the plaintiff the benefit of a theoretical contention which he did not make.

4. The assignment that the court "erred in failing to charge the jury with respect to the right of the movant to recover storage of the plaintiff" is too general to present any question for decision.

5. For the errors in the exclusion of evidence and in the charge of the court as pointed out above, the verdict in favor of the plaintiff should have been set aside by the grant of the defendant's motion for a new trial.

Error from Superior Court, Crisp County; A. J. McDonald, Judge.

Suit by F. M. Livingston against. S. L. Ryals. Judgment for plaintiff, defendant's motion for new trial was denied, and defendant brings error.

Reversed.

F. M. Livingston brought suit against S. L. Ryals to recover damages for the alleged breach of a contract. The court overruled a general demurrer to the petition, and thedefendant excepted pendente lite. The trial resulted in a verdict in favor of the plaintiff. The defendant moved for a new trial, which the court refused, and the defendant brought the case to this court.

The material allegations of the petition were as follows:

"2. That on September 6, 1929, the said defendant S. L. Ryals and your petitioner entered into a contract whereby your petitioner and the said defendant traded automobiles, a true copy of said contract is hereto attached, made a part hereof and marked Exhibit A.

"3. That under the terms of said contract your petitioner was to deliver to the said defendant at Cordele, Georgia, an automobile, the value of which as agreed upon was $650, and that in pursuance of said agreement and contract your petitioner delivered to said defendant said automobile.

"4. That under the terms of said contract the said defendant was to deliver to your petitioner at Atlanta, Ga., one 30-47 Buick automobile, equipped with bumpers, spare tire, tube, tire cover and step plates, and that said defendant, at the time said contract was entered into, gave to your petitioner a letter addressed to Buick Motor Company, Atlanta, Ga., directing them to deliver to your petitioner said Buick automobile when petitioner had given to said Buick Motor Company a cashier's check for $845. A copy of said letter is hereto attached, made a part hereof, and marked Exhibit B.

"5. Petitioner shows that he presented said letter to Buick Motor Company at Atlanta, Georgia, and tendered to them said cashier's check for $845, but that they refused to deliver said automobile to your petitioner and advised him that they had been instructed by defendant not to do so.

"6. Petitioner shows that he has complied with his contract in every detail and is now willing to comply with the same, but that said defendant has breached his contract and has failed to deliver to him said automobile in Atlanta, Georgia, as agreed upon, and that therefore, by reason of said breach, said defendant is indebted to your petitioner in the sum of $650, this being the amount agreed upon as being the value of the automobile, which your petitioner delivered to said defendant at the time said contract was entered into."

The following is a copy of the contract and of the letter referred to in the petition as Exhibits A and B, respectively:

"Sept. 6th, 1929.

"This Is to certify that I have this day traded cars with Mr. P. M. Livingston. He Is to get a 30-47 in Atlanta September 15th, 1929, to be equipped with bumpers, spare tire, tire cover and step plates. Difference to be $845.00. Our delivered price Cordele equipped $1495.00.

"S. L. Ryals.

"P. M. Livingston."

"Sept. 6th, 1929.

"Buick Motor Co., Atlanta, Ga.

"Gentlemen: Please deliver 30-47 equipped with bumpers, spare tire, tube, tire cover, and step plates to Mr. F. M. Livingston for me. "Yours truly,

"S. L. Ryals.

"F. M. Livingston."

The defendant filed an answer in which he admitted the execution of the contract, but contended that he was induced to make the contract by false and fraudulent statements of the plaintiff as to his place of residence. The defendant alleged that, at the time of entering into the contract, he was engaged in business at Cordele, in Crisp county, Ga., as a dealer in Buick automobiles; that the plaintiff was a stranger to him. and that he did not know the plaintiff's place of residence; that before making the contract he inquired of the plaintiff as to where he resided, informing the plaintiff as to the limitations upon his territory as a Buick dealer and of the fact that he could not sell or deliver cars except to residents thereof; that the plaintiff then stated to him that he was residing at the time in the city of Atlanta, but was removing to Dodge county, where he would reside in the future, and where he would use the car to be obtained from the defendant, Dodge county being within the defendant's territory as a dealer; that the representations of the plaintiff that he was removing to Dodge county and intended to use the car in that county, within the territory of the defendant, were false and fraudulent, in that the plaintiff was then a resident of Ben Hill county and had no intention of removing to Dodge county or of using the car in that county, but, on the contrary, intended to remain a resident of Ben Hill county, which was without the territory of the defendant, and that the plaintiff's representations did induce the defendant to make and sign the contract with him; that the sale of a car by the defendant to the plaintiff when he was not a resident within the defendant's territory would subject the defendant to loss of all his commissions or profits upon the sale, as well as the loss of his agency, which was and is of a large pecuniary value; also that the defendant would sustain a further loss, in that, in making allowance for the plaintiff's car, the defendant took into consideration his profit or commission on the sale, and therefore allowed for the plaintiff's car at least twice the amount of its true market value; that the defendant, upon discovering the plaintiff's fraud, notified Buick Motor Company in Atlanta not to make delivery of the Buick automobile tothe plaintiff, and also that the defendant elected to rescind the contract because of the plaintiff's fraud.

The defendant further pleaded that he tendered the plaintiff's car back to him and advised him that he (the defendant) was holding the car subject to the plaintiff's order, and would expect to be paid storage on the same at the rate of 50 cents per day from and after a certain date. The defendant pleaded also a continuing tender.

Facts relating to the trial will be stated in the opinion.

Strozier & Gower, of Cordele, for plaintiff in error.

McDonald & McDonald, of Fitzgerald, for defendant in error.

BELL, J. (after stating the foregoing facts).

1. "We think the court erred in not sustaining the general demurrer and dismissing the petition. The plaintiff is suing for a breach of contract, and is seeking damages therefor. He did not accept the alleged breach by the defendant as ground for a rescission. In that case he would have been entitled to a restoration of the status, and, if the defendant had refused on demand to deliver the plaintiff's automobile back to him, he could have brought a suit for its value. The plaintiff elected a different remedy, however, and in the action as brought the petition fails to set forth any measure of recoverable damages. In suing as for a breach of the contract, the plaintiff could recover only the value of the contract, that is, the market value of the automobile which he was to receive from the defendant, less the balance to be paid by the plaintiff, such value to be determined as of the time and place of the delivery as fixed by the contract. Harden v. Lang, 110 Ga. 392 (1), 36 S. E. 100; Butler v. Sams, 138 Ga. 748, 75 S. E. 1127; Busbee v. Chapman, 139 Ga. 19, 76 S. E. 377; Adams v. Fleming, 33 Ga. App. 742 (1), 127 S. E. 819; Civ. Code 1910, §§ 4270, 4271.

The authorities cited by counsel for the defendant in error cannot have application where the plaintiff is not suing upon the theory of a rescission, but is expressly claiming damages for a breach of the contract. The written agreement as attached...