Branch, Sons & Co. v. Palmer, 65 Ga. 210

Branch, Sons & Co. v. Palmer

65 Ga. 210 | Ga. | 1880

Jackson, Justice.

This suit was brought to recover damages from Palmer by-Branch, Sons & Co. for failure to deliver cottons purchased by the latter from the former. Under the instructions of the court, the jury found for the defendant, and a motion for a new trial being refused to plaintiffs, they bring-their case to this court.

1. The defendant refused to deliver 300 bales of cotton already bought and shipped, and to buy and deliver anymore because plaintiffs dishonored his draft on them in Augusta, the defendant being a resident of Macon, for fourteen thousand dollars, which he had drawn on them on account of the 300 bales so bought and shipped on board the cars at Macón. The contract is in the form of letters between the parties, and the cotton was to be delivered “free on board”—“ F. O. B.” being the initials used. It was to be sent to different ports—such as Charleston, Port Royal, etc., etc. The draft was drawn,, with bill of lading attached, when the cotton was shipped on the cars, and the court allowed evidence to show that such was the universal custom of the trade. The plaintiffs objected and excepted thereto, and also to the charge-of the court to the effect that if such was the custom the draft should have been paid by Branch, Sons & Co., unless the words of the contract took this case altogether out of the custom.

Without going into the common law or our sister states-for the law on -this subject, it is enough to refer to our own Code, which embodies the substance of the common law as construed by our own earlier decisions on the doc*214trine in respect to customs of this sort, and the effect thereof upon contracts. Section 4 of the Code declares, under paragraph I, which is on the subject of “Laws of force in this State,” that “ The custom of any business or .trade shall be binding only when it is of such universal practice as to justify the conclusion that it became by implication a part of the contract.” So that it will be seen that the custom of a trade is admissible, not as ordinary parol evidence, but as law—entering into the contract just as any other law does. It is not dependent on the rule that parol evidence is inadmissible to varya writing, nor inconsistent therewith, but upon the ground that the law makes the custom part of the contract, and when the custom is so universal as to become the law of the trade, it becomes by implication a part of the contract, and the contract is to be construed thereby just the same as if it had been inserted therein. Of course, custom can only be proved by word of mouth from the men engaged in the business, .and evidence thereof is necessarily in parol, but it stands •on quite a different footing from parol evidence of one standing by when a written contract is made, and who undertakes by his uncertain memory to add to or vary the thing set down in black and white at the time the contract was made.

We think, therefore, that the court was right to admit the evidence and to charge the jury thereon to the effect above indicated and as set out in the record.

2. Whilst it is the duty of the court to construe a written contract, whether exhibited by one or by twenty letters, yet whether the custom is established or not by proof is matter for the jury, and therefore the court was right to submit the question to the jury, especially as it appears to us by no means clear exactly what these parties meant by the words and symbols used in the trade, and ordinary parol explanation, as well as the custom -of the cotton trade, was essential to decipher and understand them.

3. The plaintiffs contend further that there were several *215contracts for cotton, and not one contract, and that therefore the court erred in its charge that defendant had the right to decline to buy further for plaintiffs after the dishonor of his draft. In the view we take of the case, the contract, as a whole, is one. It is so declared on by the plaintiffs. It branches out in different specifications, butj being sued as one, and springing from one source, the!1 various specifications should be construed together. It was an agreement on the part of Palmer to buy for Branch, Sons & Co. as the latter gave him orders, and as specifications and prices suited. Even if in some respects \ the contracts may appear several, yet they are depend- ] ent—dependent covenants—promises resting on mutual-1 ity—and to be kept if both sides are faithful to the re-* spective undertakings. Palmer was dependent upon Branch, Sons & Co. for money to buy, just as the latter were dependent on their Liverpool correspondents fori larger funds for their more extensive purchases. There-, fore, when his draft was dishonored,' he had the right to refuse longer to carry out any part of the contract to buy p because he could not tell when another draft, with the\ proceeds of which he expected to meet his bank account' at home, would be dishonored too.

So that we think the court submitted the law on this-point fairly and fully to the jury.

4. In respect to the legality or illegality of the contract on the subject of futures, the court put the question also substantially right before the jury. The charge was in substance, that if the cotton was a sale by Palmer to plaintiffs-to be delivered at a future day, or that both parties knew that Palmer expected to purchase to fill this contract, and to-put no skill, labor or expense therein, and none entered into the consideration thereof, but that it was a speculation on chances, then the contract would be illegal; but on the other hand, if the cotton was to be bought immediately and delivered when bought, and defendant’s skill and labor entered into the contract, thus to be at once carried out, *216then it was legal. This charge is the substance of section 2638 of our Code, and of course must be law.

Law and facts so entered into the question that the •court properly left it to the jury. Code, §2754.

5. The exceptions based on refusals to charge as requested are controlled by the points already ruled; the •evidence is sufficient to support the verdict, and the presiding judge approved the finding; therefore, as often .ruled, we do not interfere.

Judgment affirmed.