Baker v. Keever

130 Ga. 257 | Ga. | 1908

Atkinson, J.

There are many grounds of the motion for new trial, all of which have been carefully considered. W-e do not think that any of them are sufficient to require the grant of a new trial; nor do we regard it profitable to enter into a discussion of any proposition involved in th-e motion, except that which relates to the time at which the defendant committed a breach of the contract with regard to the sale and distribution of the proceeds of the cotton. Under the evidence there was a gradual rise in the market price of cotton from the first day of November, when it was ten cents per pound, up to the time that the plaintiff claims that the breach occurred, on or about the 10th of February, when it was 15.85 cents per pound. At the first of January, it was 12.50 cents per pound. The measure of damages against the defendant would be the market value of the cotton at the time of the breach of the contract, and it was material to know whether the breach occurred when the market price was one price or the other. There was no controversy over the fact that the cotton was not to be sold until after it was ginned and prepared for market. The plaintiff _ had picked the entire crop of cotton during the year and stored it in the cotton houses of the defendant, to be ginned by the defendant; and the defendant undertook to have it ginned. On the 10th of February the plaintiff obtained a bid for the entire lot of cotton at a price of 15.85 cents per pound, informed the defendant of the fact, and demanded that sale be made at that price. The defendant refused; whereupon the plaintiff then demanded a division in kind, in order that he might sell at that price, which demand was refused. The court instructed the jury: “If Keever’s [plaintiff’s] contention is correct, that he was offered a certain price for the cotton and that he could have sold it for that price, and the defendant,-Baker, refused to sell, and has kept the cotton from that day to this, that was a breach of the contract, although it is contended by the defendant, Baker, that both of them were to agree before they could sell at all; but I charge you that if you believe that the plaintiff was offered that for the cotton, and that was a reasonable price for it, and you believe he could have sold it for that amount, that would amount to a breach of contract, notwithstanding ■ it may have been that there was an agreement between them that he should not sell until they both should agree, provided you find, as I said, it was a reasonable price and was within a reasonable time. In other words, a contract of that kind, that neither should sell until the other should consent, would not mean that one could arbitrarily hold it for all time. He could hold it a reasonable length of time, but he could not hold it beyond that.” With respect to this charge, the defendant complained, in his motion for new trial, “that respondent alleged and plead that he and movant agreed that the cotton should be gathered as soon as it was matured, prepared for"market, and sold; that he also claimed that he and movant were to have a full settlement before respondent moved from defendant’s place, that is, in the latter part of the year 1903 and before the first of .the year 1904; and movant admitted that neither in the pleadings nor evidence does he claim that there was any other agreement; that the movant alleges that he and respondent agreed that the cotton was to be sold at some mutual time agreed upon; that movant testified that he and respondent agreed to have a final settlement in the year 1903; that cotton was worth less in December than in January and February; that respondent testified that he was offered 15.7/8 on or about the 10th of February, 1904; that there was no evidence that he was offered any other certain price on any other date;” and alleges that the charge was erroneous: “(a) In that the court excluded from the jury respondent’s contention, that is, that movant breached the contract in December; (6) that the court tells the jury that the contract was breached the day that respondent was offered a certain price, that is, on or about February 10, 1904. Movant says that the breach of the contract and the date of the breach is a question of fact for the jury, and not for the court, (c) That the court stated in the above-quoted charge that movant contended that the cotton was to be sold when mutually agreed upon, and that under such an agreement that movant could have held the cotton a reasonable length of time without breaching the contract. But the court erred by charging that the contract was breached the day that respondent was offered a certain price, on or about February 10, 1904; thus telling the jury that movant had waited a reasonable length of time, and thus excluding from the jury the question of what was a reasonable length of time, which question, movant says, is one of fact for the jury and not for the court.” The defendant’s theory throughout the case, as indicated by his testimony, was that there was no demand by the plaintiff for a sale until the day on which the plaintiff was offered 15.85 cents per pound for the cotton, on or about the 10th day of February, if then; that up to that time he had held the cotton by consent of the plaintiff in anticipation of obtaining a higher price. He undertook to justify his refusal to sell at the time of the demand just referred to, upon the ground that it was originally stipulated between the parties that the cotton should be sold only at such time as the parties might mutually agree upon. By the instructions to the jury the court adopted the theory of the defendant, that no demand had been previously made. Upon this point the defendant could not complain. Proceeding that far upon the theory of the defendant, the court then instructed the jury that an agreement not to sell, without mutual consent, would not authorize either party to withhold consent arbitrarily, but that either would be bound to consent to the sale within a reasonable time, at a reasonable price. The whole criticism of the charge goes to the point that the court invaded the province of the jury in fixing the date upon which the breach occurred. It does not extend to any other ground of eomplaint. In view of the defendant’s •contention that no previous demand for a sale had been made, we •can not see in the charge any suggestion of invasion of the province of the jury. As a matter of law the court was right in holding that neither party, under the agreement made at the inception of the contract relations not to sell the cotton to be produced until both parties should agree to a sale, could arbitrarily withhold his consent to a sale after the expiration of a reasonable time after the product was ready for market.

Judgment affirmed.

All the Justices concur, except Holden, J., who did not preside.