Ausburn v. Alabama Cooperage Co.

26 Ga. App. 120 | Ga. Ct. App. | 1921

Stephens, J..

1. Where one of the parties to a contract is bound to perform by delivering by a certain date a stipulated quantity of a commodijby.wMch is afterwards delivered in broken quantities, at the convenience of the contracting parties, a refusal by the other party to the contract, before the expiration of the contract, to accept any more deliveries at present, without indicating any intention to refuse further deliveries under the terms of the contract, does not amount to a renunciation or anticipatory breach of the contract.

Decided January 20, 1921.

Action on contract; from city court of Floyd county — Judge Nunnally. December 17, 1920.

Ausburn sued the Alabama Cooperage Company upon an alleged oral contract for the delivery of 100 cords of cooperage timber at $7.50 per cord, delivery to be made during "the months of January, February, and March, 1919. The plaintiff testified that after he had delivered part of the timber the defendant’s agent told him to “hold up shipping for a few days; my people wrote me not to take any more wood at present, ” and later told him “ he was not taking any more wood at all. ” According to the plaintiff’s testimony, the last conversation was more than two months before the expiration of the contract. On being recalled by the defendant the plaintiff testified: “ The last timo I saw him [the agent for the defendant], which was the last of December or first of January, he said that his people wrote him not to take any more wood at present, he did not know what they were going to do. ” The suit was filed January 15, 1919.

M. B. Etibcinlcs, for plaintiff. Benny & Wright, for defendant.

2. The evidence of the plaintiff as to the alleged breach of the contract, being contradictory and equivocal, is as a matter of law to be taken most strongly against him; and there being no other evidence tending to establish the breach, the verdict for the defendant was properly directed. Southern Railway Co. v. Hobbs, 121 Ga. 428 (49 S. E. 294) ; City of Thomasville v. Crowell, 22 Ga. App. 383 (96 S. E. 335).

Judgment affirmed.

Jenkins, P. J., and Hill, J., concur.