109 Ga. 469 | Ga. | 1899
The Mountain City Mill Company brought suit against H. F. Butler for $46.45 damages, which case was tried in the city court of Waycross. To plaintiff’s petition the defendant filed a general demurrer, which was sustained by the court, and error is assigned thereon in the bill of exceptions.
The petition alleged, in brief, that on April 20, 1897, defendant entered into a contract with plaintiff for the purchase of ten barrels of flour at the price of $5.06 per barrel, less the freight; the contract further being that the flour should be shipped by rail to the city of Waycross, there to be received by defendant on presentation to the railway company of the bill of lading, which was to be indorsed to defendant, and attached to a draft for the net amount of the purchase-money due petitioner. This draft and bill of lading was to be sent to the-Bank of Waycross, and by it presented to defendant for payment, the title and possession of the flour to remain in plaintiff until paid for by the defendant. The flour was shipped according to contract. Plaintiff drew upon the Bank of Way-cross a sight draft for the purchase-money, attaching to the draft the bill of lading indorsed by petitioner. The flour arrived in Waycross on May 3, 1897, and was unloaded and received by the S., F. & W. Ry. Co., at its freight-depot in Way-cross. On May 8, 1897, the bank presented the draft to defendant and demanded payment. Defendant recognized that the draft was correct, but, being short of funds, requested the bank to hold the draft until the following Monday, when she would pay the same. On May 10 the depot in which the flour was stored was destroyed by fire. It is charged that this loss was the direct result of the non-performance by defendant of her contract, in failing to pay the draft, obtain the bill of lading, and receive the flour in compliance with the contract.
When a contract of purchase has been made and there has-been full performance thereof by the vendor, he can.recover any damages growing out of the breach of the contract by the
Also in the case of Sparrow v. Pate, 67 Ga. 352-3, it appears that the owner of cotton left it with a warehouseman to sell, leaving the warehouse receipt, on presentation of which alone the cotton was deliverable. The agent of certain buyers contracted for its. purchase, indorsed on the receipt the price and his initials; returned it to the warehouseman for the purpose of collecting the purchase-price from the buyers. Before the price was paid, the warehouse was burned and the cotton in it. It was there held that the title had not passed to the purchasers. On the trial of the issue a verdict was rendered for the plaintiff below. This verdict was set aside by the judge, and the judgment affirmed by this court, upon the ground that the title had not passed to the purchasers, and that therefore there could not be any recovery from them of the purchase-price. Under the provisions of section 3551 of the Civil Code, where a vendee refuses to accept and pay for goods which he has con-tracted to buy, it seems that the vendor can not recover the entire price, unless he stores or retains the property for the vendee. There is nothing in this case to indicate that the plaintiff elected to take this step, even if it had a right to do so under the facts, but it simply retained the possession and title to the property for plaintiff’s own protection. Besides, construing the petition most strongly against the pleader, it is clearly inferable from its allegations that the time for the payment of plaintiff’s draft was extended by the plaintiff’s agent, the bank, until the following Monday, when the flour was destroyed before it was presented on that day for payment. The mere failure of the defendant to pay the draft promptly could not, of course, have been the cause of the fire and the destruction of the flour; and it being destroyed while title and possession remained in the plaintiff, and during the extension of the time in which the defendant was allowed to pay the pur