110 Ga. 403 | Ga. | 1900
Ross & Barfield brought an action by attachment against Armour & Co., of Chicago, Ill., for the recovery of damages resulting from the alleged breach of contract by the defendants, which contract was set forth in the petition in the following language:
“ Memorandum of agreement made and entered into this 28th day of June, A. D. 1898, between Armour & Co., of the City of Chicago, County of Cook, State of Illinois, party of the first part, and Ross & Barfield, of the County and State aforesaid [Bibb County, Georgia], party of the second part, witnesseth: The party of the second part hereby agrees to use exclusively the Bruit Growers Express refrigerator cars owned by the party of the first part on Central of Georgia Railroad in the State and County first aforesaid, for the shipment under refrigeration of all fruit in car-load lots owned, bought, or controlled in any manner whatsoever by the party of the second part during the present fruit-shipping season of the year A. D. 1898, and to pay to the party of the first part their tariff charges, as filed with the agent of the railroad at their shipping station, .for such service, less the sum of five dollars per car rebate, which the party of the first part hereby agrees to pay the party of the second part- in
The petition alleged, in substance, that on the 19th, 20th, 21st, and 22d of July, 1898, the principal part of the peach crop ■of petitioners, covered by above contract, ripened, and that Armour & Co., in accordance with the terms of the contract, were notified twenty-four hours ahead of the cars that petitioners required each day to ship their peaches, and on each of said dates failed to furnish the requisite cars requested by plaintiffs. On July 19 two cars were required, and none furnished; on July 20 three cars were required, and only one furnished; on July 22 four cars were required, and only two were furnished; and of the two ears required and furnished on July 23 one of them was not the kind called for by the contract, but was a dirty meat car, totally unfit for the shipment of fruit, and was only used by petitioners in preference to letting the fruit, that was loaded in it, decay and become a total loss. On July 19 and 20, petitioners, relying on defendants to comply with their contract, had picked, packed, and crated in and around their packing-house, ready to
This attachment was sued out on November 15, 1898, against defendants, on the ground of non-residence, for the sum above stated, returnable to the December term, 1898, of the city court of Macon, and was levied upon certain property of Armour' & Co., and a summons of garnishment issued on the Central of Georgia Railway on November 16, 1898. The garnishment was dissolved, and the property levied upon was replevied by the defendants. Petitioners prayed for a general judgment against the defendants for the sum of $550.01.
To this petition defendants filed a plea denying in general
Pending the trial of the case plaintiffs offered two amendments to their declaration. These were allowed by the court over the objection of defendants’ counsel. The contents of the amendments so offered and allowed, and the grounds of obr jection thereto, are hereinafter fully set forth. The case proceeded to trial, and resulted in a verdict in favor of the plaintiffs for the sum of $550.01, the amount claimed. The defendants filed a motion for a new trial, and except to the judgment of the court below overruling this motion. There were numerous grounds in' the motion for a new trial, the general ones, exceptions to the allowance of the amendments to the petition above stated, exceptions to the admission of certain testimony, and to various charges of the court. We will now proceed to discuss such of them as we deem essential to a proper adjudication of the present case.
In the light of the evidence there is nothing in the contention of counsel for plaintiffs in error that this last amendment to the-petition should not be allowed, because there Avas nothing in the contract between the parties which permitted plaintiffs beloAv to share with any other person in the use of cars ordered under the contract. The evidence shows that plaintiffs in error had a subagent at this station, who daily frequented the packing-house-where the fruit of both Ross & Barfield and Ross & Kellar Avas
Judgment affirmed.