65 Ga. 210 | Ga. | 1880
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
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
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,
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.