142 Ga. 375 | Ga. | 1914
Lead Opinion
The plaintiff did not complete the delivery of the lumber and pilings within the time specified.
In addition to what has been stated above, the defendants introduced testimony tending to show that the cost of the work in per
The rulings complained of resulted from the court’s construction of the 6th paragraph of the contract. This was held to be a stipulation between the parties adopting a measure of damages for failure to deliver the lumber and piling within the contractual time, and to fix the damages at such an amount as the defendants should be compelled to pay to the railway company, under their contract with that institution, for failure to complete the structures within the time limited for the work. In other words, by construction, the court read into clause six of the contract a part of paragraph thirteen of the contract between the defendants and the railway company, which is fully set out above. Ordinarily all damages naturally and proximately flowing from the failure to deliver the lumber and piling in the contractual time would be recoverable; but under the court’s construction, the damages recoverable would be limited' to less than those naturally and proximately flowing from the breach of the contract. If it should be held that the parties, by agreement, fixed as a measure of damages such “liquidated damages” as the defendants might be required to pay under their contract with the railway company, it might be that the plaintiff would be obliged to reimburse the defendants for money so paid out, although the delay of the plaintiff in executing its contract may not have caused or entered into the cause of delay of the contractors in completing the structures. If the first part of clause six should be construed as fixing a measure of damages for faihire to deliver the lumber and piling in time, it does not purport to fix a partial or conditional measure, but purports to be exhaustive on the subject. This would be incompatible with the provision in the last part of clause six, which authorizes the defendants, in the event of delay by the plaintiff in making the delivery, to buy from other sources lumber and piling for the account of the plaintiff. Clause six of the contract is not clearly expressed from a technical point of view, but it ought not to be given the
Judgment reversed on both bills of exceptions.
Rehearing
ON MOTION FOR REHEARING.
From an inspection of the record and of the opinion filed by the trial judge, it is apparent that he rejected the evidence to which we have referred, because of the construction which he placed upon the contract, and not because of objections as to its generality or competency for other reasons. In our decision we have dealt with the judge’s construction of the contract, especially with reference to the first division of the sixth clause thereof and the effect of the words “as liquidated damages.” In doing so we have not overlooked other portions of the sixth clause or of the contract; but we have not thought it necessary to go beyond the requirements of the present case; and other questions as to the admissibility of evidence or objections thereto, or the like, are not precluded by this decision, except in so far as dependent upon the ruling herein made as to the construction of the contract.