1 Ga. App. 176 | Ga. Ct. App. | 1907
This case brings for review the judgment of the trial court sustaining a demurrer to the plaintiffs’ petition. We can best make plain the errors complained of u and considered by setting forth with practical completeness the original and amended petition, and also the demurrer. The petition, omitting formal parts, is as follows: “Pope & Fleming, a firm composed of Fred. B. Pope and Porter Fleming, both of said county, bring this action as plaintiffs against the G-raniteville Manufacturing Company as defendant, and show: (1) Said defendant is a corporation existing under the laws of the State of South Carolina, but doing business in said county of Richmond, and having a place of business .and oflSeers and agents located in said county of Richmond; and the cause of action hereinafter set out originated in said county of Richmond. (2) On October 14, 1904, plaintiffs and defendant entered into a definite verbal contract, according to which plaintiffs were to store and finance for the defendant company 1,000 bales of cotton; the cotton was to be delivered by the defendant company at the warehouse of plaintiffs at any time after October 14, 1904; the defendant company was to have until Sept. 1, 1905, to remove it. Plaintiffs were to pay for the cotton at its actual cost, and were to issue warehouse receipts to the defendant company; the defendant company was to give its notes to plaintiffs, payable in six months, with the warehouse receipts attached; the rate of interest was to be 6%, based on the New York rate, then quoted to plaintiffs 5%; and this profit of 1% interest was, at the time of making said contract, in contemplation of both parties thereto. The cotton was to be insured for the defendant company, the premium to be paid by said company, and the insurance policies were to be taken out either by plaintiffs or by the defendant company. The compensation to the plaintiffs for the storing, financing, and services to be rendered under said
‘Graniteville Mfg. Co., Augusta, Ga. 10/14/4.
‘Dear Sir,- — -We beg to confirm contract made with you to-day to store for your account 1,000 bales of cotton. About 700 bales are to be placed in our close storage, the balance in open storage. Our charge to be $1.00 per bale. You to deliver the cotton at our warehouse at any time from this date on, and you -are to have until Sept. 1, 1905, to remove it. We agree to pay for the cotton at actual cost, and to issue you warehouse receipts. You are to give us your note, payable in six months, with said warehouse receipts attached. The rate of interest to be 6%, based on present New York rate quoted to us of 5%. We to insure the cotton for 3rour account, you pay the premium, or you to handle the insurance. We think these terms as mentioned cover the transaction, and we will thank you to confirm same. Yours truly,
Pope & Fleming/
(4) Subsequently Mr. T. I. Hickman, president of the defendant company, acknowledged in writing the existence of said contract, in a letter addressed to the plaintiffs, dated January 30, 1905. A copy of said letter is as follows:
‘Augusta, Ga., January 30, 1905.
‘Messrs. Pope & Fleming, Augusta, Ga.
‘Gentlemen, — Referring to the agreement about storage, made with you last October, I beg to request that you make an earnest effort to re-rent this compartment for our account. There seems absolutely no possibility of our buying any quantity of cotton to*179 store at this time; and to be perfectly frank, we are not sure that we desire to do so. If the writer had been in the office when cotton was down as low as 6% cents, there would have been little, if any, doubt of our carrjdng out our agreement with you to the letter. I certainly would appreciate anything you can do for us under the circumstances, though, as the matter stands now, we will be practically indebted to you for the storage of the 1,000 bales for six months unless you can come to our rescue. With kind regards, Tours truly,
T. I. Hickman, President.’
(5) In pursuance of said contract plaintiffs reserved in their own warehouse space for 1,000 bales of cotton from October 14, up to about Novepaber 11, 1904, at much inconvenience and expense to themselves. On November 11, 1904, they made a contract with Alexander & Alexander for storage room in their ware-' house for 1,000 bales of cotton, in order to be in readiness to carry out their contract with the defendant company, the warehouse of said Alexander & Alexander being in all respects as safe and secure as the warehouse of plaintiffs, and calling for no higher rate of interest. For the storage room so rented from Alexander & Alexander plaintiffs were obliged to pay the sum of $500. (6) The defendant company failed to carry out its part of the contract by furnishing the cotton for storage as agreed upon, but left the plaintiffs under the impression that the cotton would be furnished; and plaintiffs held themselves at all times in Teadiness to care for the same, and it was not until January 30, 1905, that the defendant company made any suggestion or intimation that the plaintiffs should re-rent the storage room then being reserved for the defendant company, as shown by the letter set out in paragraph 4; and in that letter the president of the defendant company admitted an indebtedness for the storage of 1,000 bales of cotton for six months, in accordance with that contract. Plaintiffs made all reasonable efforts to re-rent the storage room which they had reserved for the benefit of the defendant company, but without success. (7) By breach of said contract as aforesaid, plaintiffs have been damaged as follows: $l.per bale for storing and financing 1,000 bales of cotton, $1,000; 1% interest on $50,000 for six months, $250; total, $1,250. (8) As against this sum of $1,250 plaintiffs admit that there should be a credit of $105.62% for
At the hearing the plaintiffs filed the following amendment: “(1) By adding to paragraph two of the original petition the following, to wit: ‘Said contract as above set out was fully agreed to by both parties at a personal interview on the morning of October 14, 1904, prior to the writing -of the letter of that date by Pope & Fleming as set out in paragraph three of the original petition, which letter merely reduced to writing what had already been agreed to and accepted as binding by both parties; and plaintiffs fulfilled every obligation resting on them thereunder, except such as they were prevented from fulfilling by the breach of said contract by defendant; and plaintiffs stood ready at all times to perform’ all their obligations under said contract, and promptly made definite arrangements to carry the cotton and finance the transaction in accordance with the intent and terms of said contract, and the defendant company positively agreed to furnish the 1,000 bales of cotton for storage on the terms set out in paragraph 2 of the original petition, said agreement being made by T. I. Hickman, president of the defendant company, on October 14, 1904, as a part of the original contract prior to the writing of the letter of that date.’ (2) By striking out from the last line of paragraph 2 of the original petition the following word, sign, and figures ‘about $50,000;’ and inserting the following, to wit: ‘$54,375, according to the highest price on any day between October 14, 1904, and September 1, 1905, and $32,812.50, according to the lowest price on any day between those dates, and $45,000, according to the average price between those dates.’ (3) By adding to paragraph 5 of the original petition the following: Hinder the terms'of said contract there was no requirement or specification that the cotton should be stored in a particular warehouse then occupied by plaintiffs, but the intent and meaning of said contract was that the storage could be made by reserving space in plaintiffs’ warehouse, or by securing space equally as safe and good in another warehouse; and the space was secured and paid for in
The demurrer was upon the following grounds: “(1) The plaintiffs, by the allegations in their petition, fail to set forth any cause of action against the defendant. (2) For further grounds of demurrer, it appears from plaintiffs’ petition that the terms of the alleged contract were reduced to writing in a certain letter bearing date October 14, 1904, and it appears from the terms of the contract as thus set out, ¿nd as otherwise explained in other portions of plaintiffs’ petition, that there was no mutuality in the contract, and that the so-called contract was no more than a continuing offer on the part of Pope & Fleming to do certain things for the defendant at a certain rate of compensation, which until accepted and acted upon by the defendant, Pope & Fleming were at liberty to withdraw therefrom; and being at such liberty to withdraw, the defendant is not bound. (3) For further ground of demurrer defendant says, even if, under the terms of the alleged contract, Pope & Fleming were bound to stand ready to furnish storage, do the financing, and loan the money upon the terms stated by them, there was no obligation resting upon the defendant to take advantage of or pay for the accommodation which plaintiffs contend that they contracted to furnish. (4) For further grounds of demurrer, it appears, from the allegations of plaintiffs’ petition, that the defendant was to pay one dollar a bale, not merely for storing, but for both storing and financing. It appearing from the allegations of the petition that by the term ‘financing’ is meant the procuring and furnishing the necessary money to purchase the cotton, even if the plaintiffs were entitled to damages growing out of the breach of the alleged contract, through failure to rent their warehouse, they would not be entitled to recover for services for financing when they were never called upon to perform such services, or to procure such money. , Wherefore all portions of the plaintiffs’ petition which claim to recover anything for financing should be stricken, and especially the first item of damage claimed
Plaintiffs’ suit, however, is not based upon these writings, but upon the oral agreement. These letters have value as evidence tending to show that an oral contract was made, and were doubtless introduced into the petition with a view either of setting out all the circumstances surrounding the transaction, or with the other permissible purpose of having the defendant admit by his answer the truth of the allegations in regard to them, théreby dispensing with the necessity of the plaintiffs’ proving them on the trial. Certainly it is true that if it appears that the contract as expressed in the plaintiffs’ letter was accepted, the writing would be the highest evidence of the terms of the contract. Woolbright v. Sneed, 5 Ga. 167; Bryant v. Booze, 55 Ga. 439 (5); Zachry v. Stewart, 67 Ga. 218 (2); Gray v. Phillips, 88 Ga. 199 (1). Since the terms set up in the plaintiffs’ letter are in substantial accord with the allegations of the petition as to the oral agreement, and since it would have to be shown that the contract proposed in the writing had become complete by acceptance, before the prior negotiation should be considered as merged therein, the contentions of the defendant seem to be equally untenable from this as from the other aspect. The petition also relieves itself from the objection, made by the demurrer, that the plaintiffs discharged the defendant from the contract by failing to reserve room in their warehouse for the cotton and by renting a portion of another warehouse for that purpose; for the allegations of the petition (which as against the demurrer are taken as true) are that "Under the terms of said contract there was no requirement or specification that the cotton should be stored in a particular warehouse then