28 Ga. App. 95 | Ga. Ct. App. | 1922
The American Coal Company, a partnership, sued the Central of Georgia Railway Company, alleging in part, that on or about October 20, 1920, the defendant, as a carrier, was in possession of two cars of coal consigned to petitioners, upon which said cars of coal petitioners paid freight charges amounting to $285.76; that said defendant has failed and refused, and still refuses, to deliver said coal to petitioners; that the said coal was worth, at the time of defendant’s failure and refusal to deliver the same to it, $13.50 per ton at Savannah, Georgia, the place of destination, making a total of $1092.82; that the defendant has paid petitioners the sum of $973.84, which amount is the invoice price of said coal at the point of origin, plus freight charges, defendant claiming that the market value at Savannah is to be determined by cost at the point of origin plus freight to Savannah, while petitioner claims that the market value at Savannah is what the said coal would bring at Savannah, including petitioner’s profit; that the said payment of $973.84 was with the expressed understanding and agreement that it was accepted by petitioners without prejudice to petitioners’ right to recover any amount in excess of $973.84 that they may be lawfully entitled to recover, said acceptance of said payment not to be in any way in accord and satisfaction of said claim; and that’ petitioners are entitled to recover from defendant the difference between said sum of $1092.83, the market price at Savannah, less $973.84 paid by defendant, leaving a balance due petitioners of $118.99. The case was submitted to the judge of the city court of Savannah, who passed upon the issues without the intervention of a jury and rendered judgment against the defendant for the full amount sued for. The railroad company excepted.
The record shows that the only witness who testified in this case was Charles M. Courtenay, who swore in part as follows: “ I am a member of the firm of American Coal Company, plaintiff in this case. American Coal Company had sold the two cars of coal involved in this case to the dredge ‘ Cumberland’ for $..14.25 per ton, delivered. Plaintiff is claiming $13.50 per ton because it would have cost 75 cents per ton to transfer the coal from the cars at the wharf of American Coal Company to the dredge ‘ Cumberland.’ American Coal Company sold a number of other shipments of coal at about this time to other parties for $14.25 per ton delivered. This was the market value of the coal at Savannah at the time these two cars of coal involved in this case should have been delivered at Savannah. American Coal Company is a dealer in coal at Savannah. It buys its coal at the mines and ships the same -into Savannah, and sells it at wholesale in Savannah. It sells coal to ships for bunkers, and to factories. It does not sell in small quantities to small consumers such as householders. The price of $14.25 is the price at which plaintiff was selling coal at the time; it is not the price at which plaintiff was buying coal at the time. The $13.50 which plaintiff is charging in this case included the profit 'it would have made on these two cars to the dredge ‘ Cumberland.’ ”
Judgment affirmed.
