29 Ga. App. 604 | Ga. Ct. App. | 1923
R. T. Eubanks sued Farm Products Company, a firm composed of R. E. McDowell and J. E. Morris, as for a breach of a contract, alleging that on or about October 1, 1920, he entered into an oral contract with the defendants to sell and deliver to them at D.awson, Georgia, 25 tons of peanuts at the price of $100 per ton, the same to be delivered “ after date of the contract and within the year 1920 as they were threshed;” that between the date of the contract and the 15th day of October, 1920, he delivered and the defendants accepted and paid for 14,625 pounds, but that they thereafter failed and refused to accept the remainder. The suit is for the difference between the alleged contract price, which was at the rate of 5 cents per pound, and an alleged market price of 3 cents per pound, “ on the time and date that said peanuts were to be delivered. . . and on said date when said contract was breached.” The statute of frauds is not involved. The defendants’ answer contained only general denials, including a denial of the contract. The jury returned a verdict in favor of the plaintiff. The defendants’ motion for a new trial containing only the general grounds was overruled, and this judgment is assigned as error. It is contended by the plaintiff in error that the evidence does not authorize the verdict for the reasons, that the evidence fails to show any breach by the defendants until after the suit was filed, and that there is no sufficient evidence of market value at the time and place for delivery. It is unnecessary to point out any evidence relating to other points.
It appears that the plaintiff delivered peanuts to the defendants on two occasions, including four loads on October 14, 1920. The exact quantity of four loads was not delivered on any other
J. E. Morris, one of the defendants, testified: “ Mr. Sauls
The testimony above quoted from the plaintiff woidd authorize the inference that the contract was breached on “the next day” thereafter, or on “the next evening of the third day” thereafter, if not on October 14th. The testimony of Mr. Morris was more definite, and would support the finding of a breach on the 14th. The jury were not confined to the evidence of the plaintiff. A breach of the contract prior to the filing of the suit, October 28th, was established sufficiently by the evidence of either side. The fact that there was other evidence from which a different finding could have been made does not affect the validity of the verdict, if from any view of the evidence it was authorized.
Several loads of the peanuts were delivered, accepted and paid for at Dawson, Georgia, without any question as to the place for delivery, authorizing the conclusion that Dawson was the place of delivery, under the contract. It was inferable that delivery or tender of delivery was within the time provided by the contract, whether the refusal to accept occurred either on October 14th or on “ the next day ” or “ the evening of the third day ” thereafter.
Was there any evidence showing the market value at that time? Mr.- Eubanks, the plaintiff, also gave testimony as follows: “ I brought him four loads up here after that, and he paid me $100 a ton, when he said they were not worth but $80 a ton that same da}',
While, it is true, it was the burden of the plaintiff to prove the market value at the time and place of delivery (Bloom v. Americus Grocery Co., 116 Ga. 784 (2), 43 S. E. 54; Brandt v. Buckley, 27 Ga. App. 515 (1), 519, 109 S. E. 692), he was not confined in this to the evidence .of himself, but could resort to evidence adduced by the opposite party. Furthermore, market value, just -as any other fact, may be established either by direct or circumstantial evidence. Atlantic Coast Line R. Co. v. Harris, 1 Ga. App. 667 (57 S. E. 1030); Landrum v. Swann, 8 Ga. App. 209 (2) (68 S. E. 862); Frost v. Powell, 10 Ga. App. 95 (5) (72 S. E. 719). Testimony is plentiful that all fluctuations were downward from October 8; that in no great while it dropped as low as $60 or $65 per ton. It will therefore be seen that the jury could have found from the evidence of Eubanks that on October 14 the price was $80 per ton, or from that of Morris that it was $85, and from the evidence as a whole that it was not higher than either figure at the time of the breach, whether as fixed by Eubanks or Morris. It would be immaterial if the price went lower, for that would merely have increased the damages recoverable. With the market value at $85 per ton, the verdict was less than it might
The jury allowed interest from November 3, 1920. In actions for the breach of a contract like the present, the jury are not obliged to allow any interest at all. Civil Code of 1910, § 4396; Snowden v. Waterman, 110 Ga. 99 (35 S. E. 309). That they allowed more interest than they were obliged to allow or less than they could have allowed, does not demand the conclusion that they found that the breach did not occur until after the filing of the suit, when there was evidence sufficient to show that it occurred prior thereto.
Upon the points which -are contested no error appears. The verdict was supported by the evidence, and the court did not err in overruling the motion of the defendants for a new trial.
Judgment affirmed.