17 Ga. App. 550 | Ga. Ct. App. | 1916
On September 12, 1913, W. C. White entered ■ into a contract with Mrs. Susie Sailors, by the terms of which he agreed to pay her, “for his board, washing, and sewing for one year, beginning September 15, 1913, and ending September 15, 1914, 2500 pounds of middling lint cotton, to be ginned and packed’in five five-hundred-pound bales, and deliver the same on or by October 15th, 1913, wherever the said Mrs. Sailors designates.” On November 2, 1913, he died. His executor brought this suit, alleging that Mrs. Sailors had received the entire 2500 pounds of middling lint cotton for the board and care of his decedent from September 15, 1913, to September 15, 1914, though she had only for a period of 45 days performed the services specified in the contract. He alleged that the'2500 pounds of cotton received by Mrs. Sailors was worth $300, and the portion she had earned was $38.40, and that he was therefore entitled to have the contract apportioned and to recover $261.60 for the estate, with the interest thereon. On the close of the testimony the court directed a verdict for the defendant, and -this is assigned as error. The plaintiff insists that the contract in question is severable, and that it is clearly apportionable.
Generally an entire contract, from its very nature, is not subject to apportionment. It is true that by the terms of section 4229 of the Civil Code provision is made for certain exceptions to the general rule, such as where the price to be paid is not fixed, or where, by the terms of the contract, the price or consideration is apportioned according to time; and in the same section it is further provided that i(if the failure of one party to perform is caused by the act of the other, the contract may still be apportioned.” It is clear that the facts of this case do not place it under any of these excéptions. The price which White was to pay was definitely fixed at 2500 pounds of lint cotton. It was for a fixed term of one year, and was not apportioned according to months or weeks. The insistence that the contract may be appor