51 Ga. App. 941 | Ga. Ct. App. | 1935
E. M. Wise instituted suit against the City of Atlanta, to recover damages for an alleged breach of a contract of sale by the city to him of sludge which had accumulated at certain of the city’s disposal plants, and which would accumulate at these plants during a period of one year, and which Wise agreed to remove. The alleged breach consisted in a cancellation of the contract by the city before its termination, by refusing to permit the plaintiff to further remove any accumulations of sludge. He laid his damage at $27,910.28, this sum being based on the alleged difference between the 50 cents purchase-price in the beds, the cost of removing and preparing the sludge for market, and the market value of the tonnage on hand, and the reasonable expectancy of the plants for the remainder of the contract period. Hpon the close of the evidence adduced by the plaintiff at the trial, the defendant moved for a nonsuit. This motion was overruled, and after further introduction of evidence a verdict for the plaintiff in the sum of $1500 was rendered. To the overruling of the motion for nonsuit, and of the motion for new trial, the defendant excepted.
The evidence was as follows: The contract was executed on August 1, 1930. By its terms Wise was granted, for a period of one year from the date of the contract, the privilege to enter upon the property of the city at the city’s disposal plants named, and “remove therefrom the product accumulated thereat known as sludge,” for which Wise agreed “to pay for said sludge, so removed, at the rate of 50 cents per ton.” Wise agreed, “during the term of this contract, to remove the sludge now at said plants at once, and to remove sludge which accumulates during the term of this contract as fast as same accumulates at said plants, to the extent that there shall not be an overflow'of the beds at any time.” Wise was permitted by the contract to put up drying sheds on the city’s property, and to have the privilege of removing them at the termination of the contract. It was agreed that the city reserved the right to use 50 tons of sludge from each of two of the three disposal plants. There .were three disposal plants—the Peachtree
The three plants together produce about 10,000 tons a year. Wise’s estimate was 425 tons per month. One witness testified that Wise actually removed from the Proctor Creek plant, in the eight months he had the contract, an amount which would be the production for about three days. Wise stated it was 20 tons. This evidence was uncontradicted. Wise took many tons out of the beds, which he piled up; but the evidence shows without conflict that it was his policy to remove it from the premises only as he sold it, and that he sold very little. He paid the city only for the quantity he actually sold. He stated that he took from the Peach-tree beds 2342 tons and stored it on the city’s property, but his estimate of the quantity actually removed from the city’s premises showed that it was a comparatively small amount. His own estimate was 120 to 130 tons. His uncle, W. W. Wise, estimated that he removed about 400 tons. As to the exact amount of sludge on hand at the date of the contract the evidence is not clear, but Wise’s
While Wise, in his testimony, denied receipt of the notice from the city of its intention to cancel the contract if he did not commence removing the sludge within ten days, there was no insistence that there had been any departure from the strict terms of the contract (which required Wise to remove the sludge at once) by the city’s failure for several months to insist upon a strict compliance by him with his obligation to remove the sludge, and that the city could not declare a forfeiture of Wise’s rights under his contract without first notifying him and giving him an opportunity to carry out his obligation under the contract by proceeding immediately to remove the sludge. The case was tried and submitted to a jury by the charge of the court upon the theory whether Wise had complied with his obligations under the contract, and the city had without excuse terminated the contract before its expiration. It is therefore immaterial whether Wise ever received this letter from the chief of construction of the city. A breach of a contract in a manner so substantial and fundamental as to defeat the object of the contract authorizes a rescission by the opposite party. Sinclair Refining Co. v. Davis, 47 Ga. App. 601 (171 S. E. 150); 13 C. J. 613, and cit. The question is, did Wise’s failure to remove the sludge from the premises of the city amount to a breach of the contract in its entirety and in a manner so substantial and fundamental as to defeat the entire contract ? In determining this ques
In view of what has been said, it is unnecessary to pass upon the special grounds of the motion for a new trial, which, where not amplifications of the general grounds, consist in exceptions to rulings upon testimony respecting the value of the sludge in the beds and to the number and condition of the beds into which the.sludge was drawn, etc. The verdict for the plaintiff was unauthorized, and the court erred in overruling the motion for a new trial.
Judgment reversed.