117 Ga. 950 | Ga. | 1903
On July 3, 1896, W. H. Harris, as executor •under the will of H. C. Harris, entered into a written contract with Gano &. Jennings, which embraced, among other stipulations, the following: That firm was to be allowed to place its sawmill on a plantation comprising a portion of the estate represented by Harris, and to “cut therefrom all the timber available for lumber, except pine.” This timber was to be sawed into lumber, at the expense of Gano & Jennings, “according to the specifications furnished by Harris, and to be stacked on sticks on the yard in such manner as ” 'he might direct. “ On 1st Wednesday in each month, Harris ” was to “inspect the lumber sawed during the preceding calendar month, and pay” Gano & Jennings in cash, as per a schedule of prices agreed on, for all the lumber so sawn which came up to the specifications furnished. The lumber which did not meet these specifications was to “ be divided equally, Harris taking one half, and Gano & Jennings taking one half as their full pay for sawing it and piling it in two separate piles.” Harris was to keep that firm “ supplied with specifications for sawing full time, not exceeding 200,000 feet per month;” and in the event he should fail, on application, to furnish such specifications, the partnership was to be privileged to “ saw the timber into merchantable lumber of customary sizes.” Gano & Jennings, on the other hand, agreed “to cut the timber, haul the logs, and . . saw all the timber on the place available for lumber, except pine,” according to the specifications furnished by Harris, and at the prices agreed on, averaging “sawing not under 100 M feet per month;” provided, that any “providential occurrence interfering with the operation of the mill” should relieve Gano & Jennings, to the extent of such interference, from this
His honor of the trial bench fully and fairly submitted to the jury the contentions of the respective parties with regard to whether Gano & Jennings' had, or had not, complied with the contract as to sawing according to specifications all the bills for lumber furnished by the plaintiff which could have been filled out of the timber growing on the tract of land belonging to the estate he represented. Complaint is made that his honor did not, however, specially direct the attention of the jury to the item of damage which the plaintiff claimed he had sustained by reason of being forced to keep at the mill men and teams during a period of twelve months, when, as he contended, all the sawing done during that period might have been done within six months, if the mill had been properly managed and the timber carefully selected and sawed without waste. Doubtless the plaintiff would have been entitled to recover this item of damage, had the jury found in his favor upon the main issue in controversy, viz., whether or not Gano & Jennings had committed a. breach of the contract by failing to saw, according to specifications, the bills of lumber furnished by the plaintiff. However, as the jury found against him upon this issue, and their finding was fully warranted by the evidence, the failure of the judge to call their attention to this particular item of the damages claimed affords no reason for setting aside their verdict.
It appeared on the trial that Harris never undertook, as provided for in the contract, to inspect, on the first Wednesday in each month, all lumber sawed during the preceding calendar month. On the contrary, the evidence discloses that he found it impracticable to do so, and that he made no effort to carry out this stipulation of the contract, but went to the piles of lumber from time to time and took therefrom such pieces as he needed in order to fill special orders. The defendants introduced testimony to the effect that the lumber sawed was properly stacked according to contract; that, without attempting to inspect it with a view to rejecting such of it as failed to come up to specifications, the plaintiff and the men in his service went to the piles in order to get pieces of lumber of certain dimensions which they needed from time to time, throwing to one side all pieces of other dimensions; that boards thus thrown off the piles were often split and rendered worthless; that
As to the plaintiff’s claim which was based on the open account sued on, the issue presented was whether or not he had made monthly advances to Gano & Jennings in order to enable that firm to prosecute the business, or had, by way of final settlement, without inspection or measurement of the lumber sawn during each month, accepted as correct the charges for sawing made by Gano & Jennings and paid the same in full without objection or complaint. With respect to this issue the evidence.was conflicting, and the trial judge, in charging thereon, instructed the jury that if
The jury found that the plaintiff’s claim that he had overpaid that firm was not well founded, and, further, that he was due to it $352, upon a just and fair accounting between them. We are not prepared to hold that this finding of the jury was without evidence to support it, although there was evidence which might well have warranted a different conclusion.
Judgment in each case affirmed, as to main till of exceptions ; cross-hill of exceptions dismissed.