55 Ga. 75 | Ga. | 1875
Contracts required by section 1950 of the Code to be in writing, are nevertheless good by the terms of the next section, if there has been performance on one side accepted by the other, or if there has been such part performance as would render it a fraud in the party refusing to comply if the court 'did not compel performance. Tested by the foregoing legal principles, there is no doubt that the defense of recoupment can be entertained in the present case, and that it ought to prevail to the extent of any damages that would be recoverable by the mortagagor against the mortagees in an original action by the former against the latter for the breaches of contract alleged in the plea. According to the plea the note and mortgage were but'parts of an extensive contract between the parties, embracing-many particulars. The note and mortgage were created in part execution of that general contract, and represented certain of its stipulations only. Other stipulations of the same general contract were obligatory upon the mortgagees, some of which were performed and some violated, and from such violation damages are alleged to have resulted to the mortgagor. The plea alleges performance on the part of the latter of all stipulations casting any obligation upon him, except only that of paying the mortgage debt. The object of this suit is to compel him to perform that; and he urges, asa defense, his counter-claim for damages.
It does not appear from the plea that either the schooner line or the bank was ever established. That being so, the damages from not making the mortgagor agent for the one and manager of the other, are' too remote and uncertain. "Whether, .if the two institutions had gone into effect, and he had been excluded from the agency and management, his damages resulting from such exclusion would, under the contract, have been sufficiently certain and proximate, need not be discussed. Neither is it necessary to consider, on the facts as they stand, What may be, or may have been, his right in respect to rescinding the contract for failure to establish the bank and the line of schooners: 29 Georgia, 461. The other three stipulations alleged to have been broken by the mortgagees, are within the ordinary rule of damages. If lumber was stored, and the storage was to be paid for at Savannah rates, those rates are doubtless ascertainable. If there was a failure, during the first and second' years, as alleged, to ship the agreed quantity of lumber over the mortgagor’s wharf, at the agreed wharfage of twenty-five cents per thousand ; that item is susceptible of caloulatibn; and if, by reason of unwarranted obstruction, the mortgagor was excluded from his wharf when he was entitled to use it, and when its. use would have been of value to h[m, his loss admits of legal estimation, more especially as the plea specifies the number and character of
Judgment reversed.