9 Ga. App. 691 | Ga. Ct. App. | 1911
Camp sued Russell, alleging that during the summer of 1909 .they made certain contracts by which Russell agreed to sell and deliver to Camp a designated number of bales of cotton at various times during the fall of that year; that he delivered only a portion of it and failed to deliver the remainder; and that the contract price was less than the market price; whereby the amount of damages sued for resulted to the plaintiff. The contracts were evidently written in the same printed form as that which is set out in full in the case of Luke v. Livingston, 9 Ga. App. 116 (70 S. E. 596), but the point made in that case, as to the illegality of the contract, is not here involved. The defendant in the present casé admits the legality of the contracts and expressly sets up that, instead of their being speculative in their nature, they were intended to represent an actual sale of growing cotton which he then and there possessed. But, as he further pleads, when the cotton was gathered, the number of bales turned out to be less than the number designated in the contracts; and he delivered to the plaintiff all of his cotton with the exception of a few bales, as to which he has settled with the plaintiff. The court struck this defense, and this action of the court is the basis of the exception relied oar in this court.
The case of Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S. E. 485), settles many of the preliminary propositions involved in the case. In that case it is held: “An executory agreement for the sale of goods to be delivered at a future day is valid, though at the time the seller has not the goods in his possession, has not contracted to purchase them, and has no expectation of acquiring them otherwise than bjr producing, manufacturing, or purchasing them at some time before the day of delivery. Such a transaction is not rendered invalid by the provisions of section 3537 of the Civil Code [Civil Code (1910), § 4117], unless it is made to appear that neither of the parties contemplated an actual delivery of the goods, and that it was the intention of both that there should be no actual delivery, but that on the day fixed for delivery there should be a settlement of their differences, based on the market value of the goods on that day. In that event the transaction would be a pure speculation upon chances, but not otherwise. . . Although at the time an executory agreement for the future delivery of goods was entered into the seller intended to fulfill his contract hv delivery
In that ease the written contract was silent as to whether the cotton mentioned in the contract.was to be raised by the proposed seller or not; merely so many bales of cotton of-a certain grade were called for. The buyer refused to take certain bales of cotton that were tendered to him, on the ground that they were not raised upon the lands of the seller, and alleged that there was a contemporaneous parol contract that the cotton was to be raised upon the seller’s land. The court held that the evidence as to the parol contract could not be received to-add to or vary the writing, and that the buyer was liable for refusing to take the cotton when tendered to him. In the case at bar, while the contract does in one of its clauses, in general terms, call for a designated number of bales of cotton of a certain grade and weight, it is specified, in another part of the contract, that “the above number of bales of cotton represents the crop or a part of the crop of the party of the second part for the present year.” The point here insisted on is that this written contract itself shows that the parties had in contemplation, not an executory sale of cotton general^, but an executory sale of all or a part of a specified crop of cotton then growing.
IYe think that the court erred in striking the defense. The parties seem to have deliberately put into the contract the clause which provides that the cotton mentioned therein was specific cotton, or,
Judgment reversed.