5850 | Ga. Ct. App. | May 17, 1915
1. The original petition alleged certain specific damage resulting from a failure by the carrier to furnish cars for the movement of a shipment of lumber in response to a written application therefor, duly filed, and did not seek a recovery of the penalty provided for by section 2635 of the Civil Code or by any rule of the railroad commission, and the amendment offered by the plaintiff, setting out that the defendant was bound, by a definite express contract to furnish cars for the purpose named, did not add a new and distinct cause of action. The court did not err in overruling the demurrer to the petition as amended.
2. “The obligation of a carrier to furnish cars to a patron may arise either from the duty imposed by law, or from a special contract between the carrier and the patron. In a suit for a breach of a special contract, matters which will not excuse performance of the contract, but only tend to excuse performance of the general duty imposed by law, are not relevant.” Chattanooga Southern R. Co. v. Thompson, 133 Ga. 127 (65 S.E. 285" date_filed="1909-08-10" court="Ga." case_name="Chattanooga Southern Railroad v. Thompson">65 S. E. 285). “Where the obligation springs from the contract, the carrier will be held liable in all cases where the circumstances are not such as to relieve from the performance of contracts generally.” Id. 130.
(а) There was evidence in behalf of the plaintiff from which the jury were authorized to infer that there was a definite contract between the carrier and the shipper to furnish the cars, the failure to supply which was the cause of the damage sued for, and that no sufficient excuse for the non-performance of such contract existed.
(б) The contract as alleged, and as shown by the proof in behalf of the plaintiff, which was accepted by the jury, was not too vague or uncertain to afford a cause of action for its breach. Chattanooga Southern Railroad Co. v. Thompson, supra.
3. The act of 1905 (Acts of 1905, p. 120), known as the “reciprocal-demur-rage act,” is applicable only where the gist of the plaintiff’s claim is based on the violation of the carrier’s public duty, irrespective of contract. Georgia Coast & Piedmont Railroad Co. v. Durrence, 6 Ga. App. 615 (65 S.E. 583" date_filed="1909-09-30" court="Ga. Ct. App." case_name="Camp v. Carithers">65 S. E. 583). See also, in this connection, Southern Railway Co. v. Melton, 133 Ga. 277 (65 S.E. 665" date_filed="1909-09-25" court="Ga." case_name="Southern Railway Co. v. Melton">65 S. E. 665).
(a) Where the gist of the plaintiff’s claim as set out in his petition is based on the failure of the carrier to perform a specific contract, section 2635 of the Civil Code (supra) is not applicable.
4. Under the evidence, the jury were authorized to find that the partnership between the plaintiffs had not been dissolved before the bringing of the suit in the firm name, notwithstanding the firm had ceased to do active business, as it appeared that there were debts due the firm, in process of collection, and no final settlement had been effected between the parties. See Harris v. Mathews, 107 Ga. 46 (32 S.E. 903" date_filed="1899-03-17" court="Ga." case_name="Harris v. Mathews">32 S. E. 903).
5. The court did not err in overruling the motion for a new trial.
Judgment affirmed.