1 Ga. App. 398 | Ga. Ct. App. | 1907
The error alleged in this case is the overruling of .■a certiorari. J. F. Bailey Company filed suit against West Lumber ■Company, in a justice’s court, on an account for $22.25, “for demurrage and loss on selling price of lumber shipped July 7, 1904.” The defendant in error, West Lumber Company, filed a plea in recoupment for the sum of $82.50, for failure to deliver goods alleged to have been purchased of plaintiff in error, and asked judgment for the difference between the contract price and the market value at the place of delivery. In this plea the defendant contended that plaintiff had contracted to deliver a certain car-load of lumber, to wit, No. 1 common boards, at nine & 50/100 dollars per thousand. It was further alleged that the market price of No. 1 ■common boards in Atlanta, at the date of the shipment, was fifteen dollars per thousand, and that the car-load which plaintiff .agreed to sell would have been not less than fifteen thousand feet. The defendant in the plea asked, therefore, for the difference of five & 50/100 dollars per thousand feet between the price at which it claimed to have bought and the market price at the place of delivery, to wit the city of Atlanta, on fifteen thousand feet of lumber. Before.the case went to trial plaintiff in error attempted to dismiss its action, but upon defendant’s objection the magistrate put the case to trial, and the defendant (now defendant in error) proceeded to introduce evidence to prove plaintiff’s liability, and recovered a verdict for $82.50, the amount of damages it claimed. The plaintiff in error excepted to this verdict and the judgment thereon, and carried them to the superior court by certiorari. Upon