131 Ga. 599 | Ga. | 1908
(After stating the facts.)
The contention of the plaintiff in error is that the petition sets forth no cause of action against the Southern Granite Company, but that on the contrary said petition, by its allegations and exhibits, shows that such cause of action as the plaintiffs might have-had was against other parties. With this contention of the plaintiff in error we are unable to agree. It clearly appears from the allegations in the petition and the contracts attached thereto as exhibits that a certain amount of stone was to be shipped by the three companies: the Southern Granite Company, T. F. McClure & Sons Company, and Venable Brothers, and that the plaintiff in error was, under the contract, entitled to ship to the contractors thirty-seven and one half per cent, of the stone; T. F. McClure & Sons Company, twenty-five per cent; and Venable Brothers thirty-seven and one half per cent. ‘Each of the parties named knew, under the explicit terms of the contract, that they were only entitled to ship that percentage of the stone allotted to them by the terms of the contract into which they had entered, so long as the other companies were able to fill such orders as might be given them for stone; and each of the companies knew, furthermore, if they shipped more than their allotted percentage, that, to the extent of the excess of the shipments over the percentage which they were entitled to
The foregoing disposes of the questions raised by the demurrers,
Judgment affirmed.