2 Ga. App. 776 | Ga. Ct. App. | 1907
(After stating the foregoing facts.) Summarizing the contentions of both parties, the evidence for the plaintiff tended to show that the -manager of the defendant company bargained for all of the canned peaches and tomatoes he had for sale. He testified th$t he expressly informed the manager, Mr. McCormick, that he accepted his bid in preference to that of Mr. Strickland, another buyer of' fruit, upon the ground that Mr. Strickland had only offered to take a portion of his canned goods. He further testified that he delivered the goods according to his contract, at the warehouse of the defendant, and to one of its employees, who received them and stored them in the warehouse. The defendant’s manager, Mr. McCormick, testified, that he only contracted for a fixed quantity of each of the three kinds- of fruit
What we have just said in reference to the 4th ground of the motion is clearly applicable to the 6th. The charge complained of in the 6th, however, relieves the ambiguity, if any existed, in the instruction complained of in the 4th ground; for the court expressly charged the jury that they could consider whether the defendant knew that the goods were being placed in its warehouse, and if the jury should find that it did know it, and that it was being done in pursuance of their contract, the company would be bound, otherwise it would not be bound. What could be plainer? 'If the delivery was being made in compliance with the contract, as testified to by the plaintiff, the company would necessarily be bound. The defendant could not ask to be relieved except upon the testimony of its manager that no such contract was made and that the contract that was made was'not complied with.
(a) The judge, having already fully explained the purpose and effect of the statute of frauds, was not required to repeat these instructions to the jury in connection with a charge invoked upon a different subject and one wholly disconnected with defendant’s defense under the statute of frauds. Especially is this true where the request was preferred by him who now complains, and where the request was directed expressly to only one point in the case, and was fully complied with by the court. The charge complained of in this ground of the motion did not ignore the effect of the statute of frauds, or withdraw from the jury the defendant’s defense based thereon, although the judge did not refer to the subject in connection with this instruction. The plaintiff’s case, according to his testimony, had but one foundation,, a contract of sale fully executed on his part; the defendant’s defense traveled on two legs, — the one, the plea that there was no completed contract of sale nor acceptance of the goods; the second leg, the plea in which the statute of frauds was invoked as a defense. In one view of the defendant’s case the effect of the statute of frauds was entirely immaterial. If the contract was for a limited quantity of the canned goods as a whole, and for a limited quantity relatively of each kind, and the plaintiff, in violation of the contract, attempted to deliver a larger quantity as a whole and different quantities relatively of each from those contracted to be delivered, and the defendant, as would have been its right, declined to accept them, no recovery could be had against the defendant. And this without regard to the defendant’s plea of the statute of frauds. The plaintiff’s failure to comply with the provision in reference to the quantity, and the defendant’s rightful refusal to accept the articles tendered, would defeat the sale. The statute of frauds was immaterial to either view of the plaintiff’s case as made by him in the record. If the goods were bought and delivered, as testified, according to contract, he would be entitled (regardless of the provisions of §2693 of the Civil Code) to recover the purchase-price. If the contract of sale was as testified to in behalf of the defendant, and there was no acceptance by the defendant of the goods tendered,
(b) The language of the instruction in question does not “make the legal right of the defendant to refuse acceptance of the goods dependent upon the terms of the oral contract as found by the jury,’’ as insisted by plaintiff in error; because, as stated above, the court is, at j:his point, onlj- presenting the law applicable to one issue in the case, to wit, whether there was or was not a sale of the goods as insisted by the plaintiff. But there is nowhere any intimation of opinion upon the facts by the court. This ground.of the exception is destroyed when the charge to which exception is taken is Tead.
(c) The instruction now under review may be subject to verbal criticism. The trial judge was perhaps too' complaisant in his language in referring to the sharp conflict between the parties. He was perhaps too much imbued with the spirit which it is the duty of the jury to exercise in case of conflict in the evidence,— that of harmonizing conflicting testimony so as to make all-the wetnesses speak the truth. No exception is taken to this. But if instead of saying, “if you find that the plaintiff is mistaken about his right to deliver,” etc., and that “the defendant is right in insisting that,” etc., the judge had substituted more vigorous and explicit language, so as to have charged the jury that if they found
We are satisfied, at the end of a most thorough and painstaking investigation of the merits of every assignment of error, and of every argument in its support, that our respect for the profound legal ability of the learned counsel for plaintiff in error has caused us to search more diligently (if it be possible) than usual for every error pointed out in the record and brief, and to unduly lengthen our discussion of the points involved. After all, we find no error which requires the grant of a new trial. After all, in a fair trial (but with conflicts irreconcilable in the evidence), the jury preferred to base its verdict on the testimony for the plaintiff, instead of on that in behalf of the defendant.
Judgment affirmed.