60 Ga. 559 | Ga. | 1878
The contract of sale was executory, (6 Ga., 554), and the planter did not live to complete it. Delivery was to be made at a certain warehouse, but not a bale — not even a pound, was delivered. No specific quantity or price was agreed upon. The only stipulation as to these was, that the value of the cotton delivered was to be equal to the amount of advances which the banker might furnish with which to make the crop. Doubtless, the parties contemplated whatever market price similar cotton might bear at the place of delivery, at the time when delivery was to take place. But even the amount of the advances was not absolutely fixed by the contract. The amount seems to have been left open, and made subject to the mutual will of the parties — such will as they might happen to entertain, from time to time, in the course of their dealings. The contract did not extend necessarily to the planter’s whole crop of cotton, nor was it restricted necessarily to less than the whole. It might be all, or only a small part; but which it was to be, the parties did not know, and never determined. If a part would suffice to execute the terms of the contract, who could sa,y which particular part was purchased by the complainant, and which was not ? How could the property of the complainant be distinguished from that which remained the goods of the intestate, and passed to his administrator? No separation ever took place, and thus the precise subject matter of the sale cannot be identified. See 49 Ga., 143; 51 Ib., 553.
Cited for plaintiff in error: 54 Ga., 306 ; Broom’s Com. on Com. Law, (top of page) 216 ; Adams’ Equity, 109, et seq., and authorities there cited; 54 Ga., 308, 309; Code, §§2547, 2555 ; 6 Ga., 302; Code, §§3081, 4178; 36 Ga., 666.
Judgment affirmed.
