M. D. & H. L. Smith Co. v. Strickland Cotton Mills

6 Ga. App. 522 | Ga. Ct. App. | 1909

Kussell, J.

The general demurrer was to the following allegation of the petition: “Petitioner sues for the difference between the price the sheeting was sold to M. D. & H. L. Smith Company and the market price of the sheeting when the same was refused by the said M. D. & H. L. Smith Company, the price having declined from 4% cents per yard to 3% cents per yard, showing said M. D. & H. L. Smith Company to be due petitioner the price of 77,830 yards of sheeting at 1% cents per yard, to wit: $973.75.” Pending argument on the demurrer counsel for the plaintiff stated that the suit was brought under the first clause of section 3551 of the Civil Code, which provides, “If a purchaser refuses to take and pay for goods bought, the seller may retain them and recover the ■difference between the contract price and the market price at the time and place for delivery.” There was no error in overruling the demurrer. The foregoing paragraph might be subject to special demurrer, but is good as against a general demurrer.

At the close of the plaintiff’s evidence, the defendant made a motion to nonsuit; but it is unnecessary to consider the exception to the overruling of the motion to nonsuit, inasmuch as the motion for a new trial contains the ground that the verdict is contrary to law. The defendant claims that the verdict is contrary to law be^ cause the evidence showed that the plaintiff was seeking to recover the difference between the contract price and the price at which the goods were resold, which is not the proper measure of damage where suit is brought under the first clause of section 3551, supra. According to certain evidence in the record, the market price of the sheeting at the time and place of delivery was much less than that at which the sheeting was resold; the president of the cotton mill testifying that there was practically no market for the goods at the time fixed by the contract for delivery, and that he was all during this time endeavoring to find a market, and that he sold them just as soon as he could find a purchaser at anything like a fair value. This being so, the defendant can not complain, as the verdict of the jury was even smaller than this evidence would have authorized.

There are certain assignments of error on the charge of the judge. The errors complained of were more favorable to the complaining party than the law justified; and the evidence practically demanded the verdict. Judgment affirmed.