2 Ga. App. 250 | Ga. Ct. App. | 1907
The Empire Mercantile Company had two stocks of merchandise, at Wray. One stock of goods at Wray had been bought as a whole from the Dooly Lumber Company and was what might be called an old stock. Clark & Wilcox entered into a negotiation to buy both stocks of goods, and the trade was closed by the following writing or contract: “Received of Messrs. B. E. Wilcox and John Clark, five and oo/100 dollars, as part payment on stock of merchandise now owned by us at Wray, Ga., it being understood and agreed by both parties should the Dooly Lumber Co. fail to agree to transfer agreement between them and the Empire Mercantile Co.’, then said sale to be null and void, otherwise to be in full effect to take place and be transferred on the first day of March, 1903, at invoice plus the freight and should any article in stock appear to be damaged, when both parties fail to
In conformity with this contract Clark & Wilcox executed the six notes, payable as therein provided, and five of them were paid at maturity. The sixth note was not paid. Suit was brought on it and is the subject of this litigation. It seems that the stock which was bought from the Dooly Lumber Company was the cause of the trouble. Some time after the sale Clark & Wilcox found out that Dooly Lumber p Company had given the Empire Mercantile Company a discount of twenty-five per cent, when they bought this old stock. The dispute, therefore, arose as to whether the words “invoice price” referred to the original invoice cost, which appeared to have been marked on the goods, or to the price paid by the Empire Mercantile Company'for the stock of the Dooly Lumber Company on which there was twenty-five per cent, concession. It was undisputed that at the time of the negotiation for the sale and when the sale was blosed, some of the members of the Mercantile Company did not know that there had been a twenty-five per cent, discount allowed in their purchase. Dnder these. circumstances we agree with the judge of the superior court that the judge of the city court very properly allowed the jury to determine what was meant by the words “invoice cost,” in the contract between the parties in this ease. Nearly all of the numerous exceptions assign error on the failure of the judge of the city court to construe the contract as matter of law. We think the learned counsel misconceived the holding of the trial court. There is nothing in the charge, nor is there any ruling of the court, which indicates a purpose on the part of the trial judge to shirk his duty in this regard; but where a contract is ambiguous the jury must find the facts, and in this instance it was nothing but an issue of fact that was to be determined, to wit, whether invoice cost (the meaning of which is, the cost as appears from the invoice or bill furnished contemporaneously with a purchase of goods) in this case was to be derived from one invoice or another and different invoice; in other words, whether the price was to be fixed by the invoice at which the Dooly Lumber Company stock was bought by them, or
But conceding all that the plaintiffs in error claim (which is that they were entitled to a discount of twenty-five per cent, on the stock of goods known as the Dooly Lumber Company stock), no error harmful to the plaintiffs in error appears in the judgment overruling the certiorari. Their contention was that, allowing the twenty-five per cent., the note would be canceled by the credit to which they would thus be entitled. But the evidence shows that, taking into consideration about $500 worth of the Dooly Lumber Company’s stock returned by Clark & Wilcox as shop-worn, there was only about four hundred dollars worth of this stock included in the purchase. While there was conflict as to this, and testimony placing the amount higher than $500, still the jury were authorized to find, as the value of the Dooly Lumber Company stock, $500 less. Twenty-five per cent, of this valuation being deducted from the noté sued on would be equivalent to the verdict found by the jury. The credibility of the witnesses is exclusively a question for the jury, and, in our opinion, the preponderance of the evidence established the fact that the value of the Dooly Lumber Company stock accepted by the plaintiffs in error showed it to be worth from three to four hundred dollars, and not exceeding the latter figure. The verdict of the jury found $243.71, for the plaintiff; the note in suit was for $368.71, — a reduction of $125. The verdict, therefore, shows clearly that the jury adopted the theory of the plaintiffs in error, that they ought to be allowed a discount of twenty-five per cent.; and that-they found the value of the Dooly Lumber Company stock to be $500. The jury would have been authorized, under the evidence, to find the value of the Dooly Lumber Company stock to be only $300, or to find it to be $400; and in either event, as the credit allowed would have been less, a ■greater verdict in favor of the plaintiff than that found would have been fully sustained. In this view of the case, the errors assigned in the petition for certiorari either failed to be sustained or be