W. O. Brackett & Co v. Americus Grocery Co

• Decision Date: 16 February 1907
• Citation: 56 S.E. 762,127 Ga. 672
• Court: Georgia Supreme Court
• Parties: W. O. BRACKETT & CO. v. AMERICUS GROCERY CO.

127 Ga. 672

56 S.E. 762

W. O. BRACKETT & CO.

v.AMERICUS GROCERY CO.

Supreme Court of Georgia.

Feb. 16, 1907.

1. Attachment —-Pleading — Petition — Paragraphs—Statutory Provision.

The pleading act of 1893 (Civ. Code 1895, 5 4961), which requires that petitions shall set forth the cause of action' in orderly and distinct paragraphs, numbered consecutively, is inapplicable to declarations in attachment.

2. Same—Proceedings to Procure—Plead-ing—Certainty.

The declaration was not open to demurrer on the ground that the contract of sale and its breach were not alleged with sufficient certainty.

3. Same.

Damages cannot properly be laid in the declaration at more than the amount claimed in the attachment. But, where the amount claimed in the declaration is the same as that complained of in the attachment the declaration is not rendered bad because the various items may aggregate a sum in excess of the amount claimed, where no question of jurisdiction because of this fact is involved.

4. Evidence—Parol Evidence—Contract of Sale—Identification of Subject-Matter.

Where a sale of "Texas red rust-proof oats" was made through a broker, in a suit by the purchaser against the seller for damages alleged to have resulted from the delivery of oats of a different kind, it is competent for the broker to testify that the contract of sale was made with reference to the mutual understanding of the purchaser and broker that "Texas red rustproof oats" included only oats raised in the state of Texas, and that no contrary understanding of this trade term was known to the trade.

5. Witnesses — Credibility — Impeachment —Evidence.

The letter written by the witness had no relevancy to discredit him, and was properly repelled on the ground of immateriality.

6. Writ of Error—Review—Harmless Error—Admission of Evidence.

The allowance of immaterial evidence, not prejudicial in its character to the complaining party, affords no reason for the grant of a new trial.

[Ed. Note.—For cases in point, see Cent Dig. vol. 3. Appeal and Error, § 4153.]

7. Same—Disposition of Cause—Effect in Lower Court.

The measure of damages as given by the judge in his charge was in accord with the rule laid down in this case when it was before thiscourt on a former occasion. 119 Ga. 489, 46 S. E. 657. The excerpts from the charge complained of state sound propositions of law, and, as their supposed vice is not pointed out. no ground of error is alleged.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2968, 4358, 4668.]

(Syllabus by the Court.)

Error from City Court of Americus; Chas. R. Crisp, Judge.

Action between W. O. Brackett & Co., and the Americus Grocery Company. From the judgment, W. O. Brackett & Co. brings error. Affirmed.

E. A. Hawkins, for plaintiff In error.

Shipp & Sheppard, for defendant In error.

EVANS, J. 1-3. The declaration in attachment was not subject to demurrer on any of the grounds therein alleged. It was very recently decided that the Civil Code of 1895, § 4961, which requires that the petition shall set forth a cause of action in orderly and distinct paragraphs numbered consecutively, did not apply to declarations in attachment Fincher v. Stanley Electric Mfg. Co., 127 Ga. 362, 56 S. E. 440, decided January 17th. The declaration, after reciting the suing out of an attachment by the plaintiff against the defendant, its levy, the court to which it was returnable, and the replevy of the property by the defendant, sets out the cause of action as follows: "Petitioner shows that the Indebtedness arose as follows: About the month of July, 1902, petitioner bought of W. O. Brackett & Co. 10, 000 bushels of Texas rust-proof oats, to be delivered in Americus, Ga., at 47Va cents per bushel, and of this 4, 000 bushels of oats were delivered on September 8, 1902, 1, 045 bushels on September 19th, 900 bushels on October 3d, 795 bushels October 4th, 1, 300 bushels October 7th —93230 [?] but instead of these oats being the Texas rust proof, they were Oklahoma or Indian Territory oats. Petitioner did not know of this fact when the oats were paid for, nor could this fact have been discovered by the use of reasonable diligence, and the facts have only been learned since the payment. Petitioner shows that the market value of the oats delivered to petitioner was from 10 to 15 cents per bushel less than the oats really bought, and by reason of these facts said W. O. Brackett & Co. have injured and damaged your petitioner in the sum of $1,121.50." The contract of sale and its breach are alleged with sufficient certainty. The declaration in attachment begins with the assertion that defendants "are indebted to petitioner in the sum of $1,000, as will more fully appear hereinafter." The amount claimed in the affidavit was $1,000, the same as that contained in the declaration. Nor did the mere fact that the aggregate of the particular items of damage specified elsewhere in the declaration exceed $1,000 render the declaration bad as claiming more than the amount sworn to in the attachment affidavit Casey ft Hedges Mfg. Co. t. Dalton Ice Co., 94 Ga. 407, 20 S. E. 333.

4. The oats were sold to the plaintiff by the defendants through their broker. All negotiations had with the broker by the plaintiff were verbal, but the offer to sell which the defendants authorized their broker to make was contained in telegrams passing between their broker and themselves. As a witness for the plaintiff the broker was permitted to testify: "The understanding between me and the plaintiff of the meaning of the term 'Texas red rust-proof seed oats, ' was Texas raised oats; that did not include oats raised In Oklahoma. There is no such...