Williams Mfg. Co v. Warner Sugar Ref. Co

• Decision Date: 16 May 1906
• Parties: WILLIAMS MFG. CO. v. WARNER SUGAR REFINING CO.
• Court: Georgia Supreme Court

54 S.E. 95

125 Ga. 408

WILLIAMS MFG. CO.

v.WARNER SUGAR REFINING CO.

Supreme Court of Georgia.

May 16, 1906.

Trial—Directing Verdict.

When the allegation of the plaintiff's petition that the defendant is indebted to him in a stated amount upon an account, a copy of which is attached to the petition, is admitted by the defendant's answer, and when the case is submitted to the jury there is no plea of set-off or recoupment, and the only plea left in the case is one which presents no legal defense to the action, it is not error for the court to sustain a motion to direct a verdict in favor of the plaintiff for the amount sued for, although such plea has not been demurred to and evidence has been introduced to support it.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 390, 393.]

(Syllabus by the Court.)

Error from City Court of Columbus; J. L. Willis, Judge.

Action by the Warner Sugar Refining Company against the Williams Manufacturing Company. Judgment for plaintiff. Defendand brings error. Affirmed.

The Warner Sugar Refining Company, a corporation of this state, sued on an account for $482.01, the price of 60 barrels of 42 per cent mixing glucose, sold by the plaintiff to the defendant. The petition was paragraphed, and attached thereto was a copy of the account sued on. In the answer, which was also paragraphed, the defendant first admitted the correctness of the account sued on and that it was indebted to the plaintiff the amount thereof. It then alleged that on December 22 and 23, 1903, it purchased from the plaintiff 300 barrels of glucose, at $1.77 per 100 pounds, "shipment thereof to be made by plaintiff not later than January 31, 1904, " and "that the offer by defendant and acceptance by plaintiff were by [certain] telegraphic dispatches and letters, " and that "under said contract plaintiff shipped defendant 120 barrels of glucose, which were received by defendant, 60 barrels of which were paid for by defendant, the remaining 60 barrels being the subject-matter of plaintiff's petition, " and that plaintiff wholly failed and refused "to fulfill the remaining portion of said contract." Then in three separate paragraphs of the answer the defendant set forth a claim agaisnt the plaintiff for damages alleged to have been sustained in consequence of the failure of the plaintiff to completely perform the contract, and prayed that the amount of such damages should be set off against the amount of the plaintiff's claim. In an amendment to the answer the defendant also pleaded "that the contract between plaintiff and defendant was an entire contract, and that same having been broken by plaintiff, the plaintiff is not entitled to recover the amount sued for, or any portion of said contract, " and, based upon this plea, there was a prayer that the defendant should have judgment in its favor.

At the trial the plaintiff moved orally to strike the paragraphs of the answer wherein the defendant claimed to have been damaged by reason of the plaintiff's failure and refusal to completely perform the contract, "upon the ground that defendant's pleadings did not show any difference between the price of glucose on January 31, 1904, and the price named in the contract." The court sustained this motion and struck these paragraphs of the answer, "and the case proceeded to trial, under this ruling of the court with such paragraphs stricken." From the evidence introduced it appeared that the sale had been negotiated by telegraphic dispatches, which the defendant contended contained the whole of the contract, while the plaintiff claimed that a certain letter which it wrote to the defendant, confirming the sale, formed an essential part of the contract In this letter of confirmation there was a stipulation that, in the event the seller should be prevented from delivering any portion of the goods by reason of fire or accident in any part of its factory, it should not be liable In damages to the buyer for nondelivery of such portion of the goods. The plaintiff, over the objection of the defendant, introduced this letter and similar letters referring to other transactions of like character between the parties, and sought to show that, after it had delivered the 120 barrels of glucose which the defendant admitted receiving, its obligation to deliver the balance of the goods had been terminated by a fire and explosion which occurred in its factory, of which it promptly notified the defendant. After "the evidence was all in and both sides had closed, the court, upon motion of plaintiff's counsel, directed a verdict in favor of the plaintiff, and verdict and judgment were thereupon rendered" against defendant for the amount of the account, with interest thereon. The defendant made a motion for a new trial, which was refused, and it excepted. The motion for a new trial, in addition to the usual general grounds, assigned error because the court "denied to defendant the right to opening and conclusion, although defendant claimed said privilege before the introduction of any evidence, " and also assigned error upon the admission in evidence of the letter of confirmation above referred to, and upon various other rulings of the court in admitting or excluding evidence.

Chas. R. Williams, for plaintiff in error.

C. E. Battle, for defendant in error.

FISH, C. J. (after stating the facts). In the view that we take of this case, there is only one question to be determined, and that is whether the court erred in directing the verdict in favor of the plaintiff. The defendant did not except to the ruling of the court which sustained the motion to strike the plea of recoupment. Therefore the question whether the court was right or wrong in this ruling is not before us for consideration. When...