Ladd Lime & Stone Co. v. MacDougald Construction Co., 13160, 13161

13160, 13161 | Ga. Ct. App. | Sep 28, 1922

Stephens, J.

(After stating the foregoing facts.) We are of the opinion that the defendant’s contention as to the construction of the contract is correct. But for the presence of the clause which provides that the contract expires “by its own limitations on January 31, 1920,” the construction placed upon the contract by the plaintiff would have been plausible and perhaps correct. But the presence of this clause absolutely precludes any such construction as the plaintiff contends for. All the accrued rights under the contract necessarily expired and became unenforceable on the date on which the contract expired under its own terms. Since all of the plaintiff’s rights arose under the contract, including the plaintiff’s right to enforce delivery, whatever may have been the plaintiff’s rights up to the time of the expiration of the contract, such rights necessarily became nonexistent and unenforceable upon the date on which the contract expired. The contract having expired, of course all rights under the contract expired.

Under the terms of the contract a fixed and definite amount of stone was contracted for, and nothing more remained to be done by the defendant except to effect delivery upon the plaintiff’s compliance with certain provisions providing for designation as to time and place for delivery. The right to a delivery of the stone was a right which the plaintiff had only by virtue of the terms of the contract, which he could enforce unless prevented by the operation of the terms of the contract. It is not unthinkable that there could be a contract providing for contingencies which would not only operate to delay the purchaser’s right to call for delivery, but would operate to destroy his right to demand delivery at any time and rescind the actual purchase of any undelivered stone. It is conceivable that the seller, on account of the advance in market prices, would be unwilling to bind himself to deliver after a fixed date, although he might be willing to bind himself to deliver before such date. It is conceivable that the purchaser was satisfied with the price and other provisions in his favor, and that he was willing to contract to relinquish his rights under the contract upon certain contingencies (as an expiration of the contract on a certain date) favorable to the defendant. The defendant’s construction of the contract was reasonable and plausible. We therefore conclude that the seller could successfully defend upon the ground that he liad not violated the contract during its life, provided the delay in delivery, was caused by such circumstances as were beyond the seller’s control and as would, under the terms of the contract, excuse delay while such circumstances existed. The seller could not, after the expiration of the contract, violate it by refusing performance of any of its terms. A verdict and judgment having been rendered for the plaintiff, the court erred in overruling the defendant’s motion for a new trial. In view of a reversal upon the ground above indicated, it is unnecessary to pass upon the other grounds of the motion for a new trial.

If it should appear from the evidence that the defendant’s refusal to deliver amounted to a violation of the contract while the contract was in life and before its expiration, and while the defendant was bound to perform, then the plaintiff would be entitled to damages for the breach. If the defendant knew that the plaintiff was engaged in a construction project which necessitated considerable expenditures by the plaintiff from day to day, and that4he stone purchased was needed in such project, and that a delay in its delivery to the plaintiff would be productive of an expense to the plaintiff in idle labor and idle equipment, directly traceable to the breach, the plaintiff might be entitled to recover such damage. Civil Code (1910), § 4395; Lee v. Bewley-Darst Coal Co., 22 Ga. App. 693 (97 S.E. 99" court="Ga. Ct. App." date_filed="1918-10-16" href="https://app.midpage.ai/document/vaughn-carlton-co-v-studebaker-corp-of-america-5610950?utm_source=webapp" opinion_id="5610950">97 S. E. 99).

Judgment reversed on both bills of exceptions.

Bell, J., concurs. Jenkins, P. J., dissents as to the main bill, but concurs as to the cross-bill.