132 Ga. 763 | Ga. | 1909
(After stating the foregoing facts.) Miles & Company brought suit against the Kennesaw Guano Company to recover the purchase-price of a quanity of tankage delivered to the defendant. The defendant filed an answer, setting up a failure on the part of the plaintiff to deliver the quantity of tankage guaranteed under a written contract between the parties (a copy of which appears in the statement of facts), whereby it was damaged in the amount of difference between the contract price and the market value of the deficiency in the amount delivered; and praying judgment accordingly. The court, to whom the ease was submitted without a jury, rendered judgment in favor of the plaintiffs for the full amount sued for, and to this judgment the defendant excepted. In the judgment the court said: “The court is further of the opinion that the evidence discloses a mutual departure from the exact terms of the written contract by the paying and receiving money thereunder by the parties thereto, which constituted a quasi new contract.” The original written contract between the parties, among other things, provided: “Said Miles & Co. are to pay for the use of said premises 4.00 per month, and in addition thereto said Company is to have the option of buying at 8.00 per ton, when dry, all the by-product called tankage obtained in rendering tallow, which is guaranteed to be not less than ten tons per month.” The plaintiffs delivered to the defendant all of the tankage they made, which was less than the 10 tons per month guaranteed under the contract. The plaintiffs contend that the various settlements made between them and the defendant, and the payment by the defendant to the plaintiffs for the tankage delivered, which was less than the 10 tons per month guaranteed, and other conduct of the defendant, shows that there was a mutual departure from the terms of <the original contract and a quasi new contract between the parties made, which relieved the defendant of the necessity of fulfilling the guarantee in the original contract of furnishing 10 tons per month. The Civil Code, §3642, provides: “Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure,
The original contract ended May 1, 1899.' It was renewed by an agreement indorsed on it by both parties, to the effect that it was extended to May 1, 1900. The president of the defendant company testified: “As to what was done at the expiration of the. second term of this contract, which was May 1st, 1900, there wasn’t anything. I can’t recall that anything at all was said about it. Edward O. Miles & Company did not remove their plant from the premises, but they continued there just as they had been doing, operating the plant, rendering tallow and making tankage. The tankage that was made was delivered to us at stated times; that is, at irregular times as they had accumulated enough to make a ‘weighing,’ as. we called it. It was delivered to us when that had been done. There was no difference in the character of the busi
The defendant alleged in its plea that the premises were worth more for rent than the amount provided for in the contract, and offered the following amendment: “Defendant says that in the event it should be held by the court that the written contract between plaintiff and defendant was not extended as contended by defendant from May 1st, 1900, to October 1st, 1901, by mutual consent, and by the continued use and occupation of defendant’s premises by plaintiff, that the defendant says that for the use and occupation uf its premises from May 1st, 1900, to October 1st, 1901, plaintiff became indebted to defendant for the reasonable rental value of the premises, which defendant says was the sum of $50.00 per month.” In view of the ruling above made, the court committed no error in refusing to allow such amendment.
Judgment affirmed.