Sylvania & G. R. Co v. Sylvania Lumber Co

• Decision Date: 31 January 1911
• Docket Number: (No. 2,712.)
• Citation: 8 Ga.App. 656,70 S.E. 51
• Court: Georgia Court of Appeals
• Parties: SYLVANIA & G. R. CO. v. SYLVANIA LUMBER CO.

70 S.E. 51

8 Ga.App. 656

SYLVANIA & G. R. CO.

v.SYLVANIA LUMBER CO.

(No. 2, 712.)

Court of Appeals of Georgia.

Jan. 31, 1911.

(Syllabus by the Court.)

Work and Labor (§ 10^*)—Express Contract.

Where one person furnishes to another commodities or services under a negotiation or arrangement definitely fixing the terms under which the person to whom the services or commodities are furnished shall pay for them, the person so furnishing cannot sue the person receiving for the value of the commodities or services on a quantum meruit, because of the fact that the negotiation or arrangement under which the parties acted was so unilateral or indefinite in its terms as that it did not create a valid contract fully enforceable. An indefinite or unilateral agreement is binding upon the parties as to its terms so far as they have mutually acted upon them.

[Ed. Note.—For other cases, see Work and Labor, Cent. Dig. § 25; Dec. Dig. § 10.*]

Error from City Court of Sylvania; H. A. Boykin, Judge.

Action by the Sylvania & Girard Railroad Company against the Sylvania Lumber Company. Judgment for defendant, and plaintiff brings error. Affirmed.

J. W. Overstreet, H. S. White, and A. B. Lovett, for plaintiff in error.

E. K. Overstreet, for defendant in error.

POWELL, J. The Sylvania & Girard Railroad Company sued the Sylvania Lumber Company for what is called railroad circles a "per diem charge, " that is, rental charged by the railroad company for the use by the lumber company of cars turned over by the one to the other for loading. It seems that the Sylvania & Girard Railroad Company was the successor of the Sylvania Railroad Company, and that the lumber company had had with the Sylvania Railroad Company an understanding or agreement by which, if the lumber company would locate its mills upon the railroad company's line of railway, instead of locating them upon another line of railway, the railroad company would allow to the lumber company five days' free use of each car turned over by the one to the other. After the expiration of five days, the lumber company paid the railroad company 25 cents per day for the detention. When the Sylvania & Girard Railroad Company bought out the Sylvania Railroad Company, it was provided in the contract between the two railroads that the purchasing company would carry out all agreements and understandings that its predecessor had made with the different sawmill companies up and down its line. The lumber company was not a party to this contract; but it seems that it was the understanding of the officers of the two companies—the railroad company and the lumber company—that cars were to be furnished and free time allowed under the previous arrangement, and for a considerable period of time statements of account were so furnished. There were mutual accounts; and the railroad company, in furnishing its statement of cars used, etc., would deduct the five days of free time to be allowed. After a time, and upon a change of officers on the part of the railroad company, statements were furnished by the railroad company to the lumber company in which the five days' allowance was not deducted. These bills or statements were not paid by the lumber company until they had been forwarded to the president, who lived away from the seat of the mills' operation. These bills from which the five days' free time had not been deducted were forwarded to the president, and for some reason were allowed to accumulate in his office. Finally he checked them up, deducted the free time, and sent the railroad company a check for the remainder. The railroad company declined to accept the check, claiming that the free time should not have been deducted. The case in the court below came to an issue over this point alone, as to whether the lumber company was entitled to deduct the five days' free time from these bills so furnished. The jury found in favor of the defendant as to this issue; and a motion for new trial, based merely on the general grounds, or rather upon the general grounds and other grounds which merely amount to an amplification of the general grounds, was filed by the plaintiff and overruled by the trial judge....