13 Ga. App. 425 | Ga. Ct. App. | 1913
John Flannery Company is a cotton-factorage corporation located in Savannah, Georgia. James is a cotton grower, cotton buyer, and shipper, located in Blakely. John Flannery Company sued James in the city court of Blakely for $8,250.32 upon an account, claimed to be due for advances made to him on 834 bales of cotton, commissions, storage charges, insurance, etc. James filed an original plea to the suit, in which he denied that he owed the.amount claimed for-storage, insurance, and interest. He set up a special contract made with an agent of John Flannery Company, by the terms of which he was to be charged only twenty cents a bale for storage and insurance, and six per cent, interest on advances, and alleged that the difference in his favor between the amount of these items as claimed in the suit (except the difference as to interest, which was waived) and the amount due under contract was $2,641.50; and he asked that this amount be deducted from the account. In his plea he admitted that he owed the balance of the account, to wit, $5,608.82; and this amount was tendered in full settlement and payment. The plea alleged also certain facts in reference to this tender, which was set up as an accord and satisfaction of the account. Subsequently, during the same term of the court, the defendant filed an amendment to his answer, in which he alleged that at the time the 834 bales of cotton were shipped to John Flannery Company it was distinctly and ex
On the second trial the answer was further amended by adding the following allegations in substance: That the plaintiff’s disregard of the instructions as to the sale of this cotton when the market price was 11% cents per pound, and its failure to comply with its duty as factor, arose out of the negligence and careless failure and omission of the plaintiff to properly grade and correctly classify the 834 bales of cotton, which lot of cotton graded as high as “Liverpool middling,” but was negligently and carelessly undergraded by the plaintiff, and the plaintiff made no attempt to sell the cotton as “Liverpool middling” while the price of that grade of cotton remained as high as 11% cents per pound, and did not discover its negligent mistake in undergrading the 'cotton, until the market price had declined and it was impracticable to sell the cotton' for this price in compliance with the instructions from the defendant. On the second trial the verdict was for the defendant, and the plaintiff filed a motion for a new trial, based upon the general grounds, and several special assignments of errors of law in the admission of evidence, and in excerpts from the charge of the court and in refusals to charge. 'This motion was denied, and the case is
We have given the case careful examination, and are clearly of the opinion that the ends of justice, as well as the voice of the law, demand another trial. Judgment reversed.