74 Ga. 233 | Ga. | 1884
Willingham filed a bill against Hooven, Owens, Rentschler & Company, in which he alleged that, on the 16th day of August, they contracted in writing to furnish him a steam saw-mill outfit, complete, all first-class, the boiler to be constructed to burn all the sawdust necessary to run
The mill and outfit failed to come to time, and Willing-ham went on to Ohio November 1,1881, and defendants wrote the following, which Willingham then and there signed:
“In consideration of the shipment to me of my engine and sawmill outfit, as per contract of August 16, 1881, I hereby agree, immediately on my return home, to duly execute my notes, negotiable, and payable to the order of Hooven, Owens, Rentschler & Company, and deposit them, subject to their order, with the Central Railroad Bank at Albany, Georgia, the same to be delivered to Hooven, Owens, Rentschler & Company, as soon as the saw-mill outfit is set up and works satisfactorily according to contract; the notes to hold the outfit as the property of Hooven, Owens, Rentschler & Company, until all is paid; the said outfit to be shipped at once.”
That notes were then drawn by defendants, signed by complainant and deposited in pursuance of the contract; that complainant, having refused, for reasons satisfactory to himself, to pay for the outfit, the defendants, on the 8th of September, 1882, instituted their action of trover and bail against him for the recovery of the same; that
To run a 30,000 foot mill would cost about $220 per day, and its proceeds would be worth about $365. A 5,000 foot mill would cost about $50 dollars per day, and its income would be about $62.50. So he avers he is injured and damaged in the sum of $20,000; that, although de
Complainant amended his bill, alleging that at and before he commenced negotiations for the purchase of said mill, he was engaged in planting, was well equipped with plantations, stock supplies, farming tools and implements necessary to carry on said business successfully, and he had made money .therein. Lumber was commanding a good price, §16 per thousand, and he believed, with sawmill outfits at a reasonable price, there was more profit in lumber than in farming. Defendants were experts; he was not, and relied on them; told them fully where the mill was to go, and that it was to cut yellow pine; that he wanted a 30,000 feet inch boards per day mill; so told them, and they so contracted with him; that on the faith of said contract, he broke up his planting interest, leased the right to cut logs on 15,000 acres land at $125 per month; that he was skilled anil successful in planting, and the defendants falsely, fraudulently and knowingly, and with a view to deceive and defraud him, made the contract aforesaid, and at the price therein stated, when, in truth and in fact, such a mill was worth from $12,000 to $15,-000, which was well known to defendants and unknown to him; but for their false and fraudulent representations, he would not have given up his planting and gone' into the lumber business, by means of which he is damaged
The defendants answered, admitting they entered into the contract set out, and alleging that they complied strictly and fully with it, and that they did all required of them thereby; state they had no knowledge that Willingham deposited their notes as claimed, and deny the averments ; and deny that there was any contract that they were not to have notes until Willingham was satisfied, etc. Admit they are skilled in saw-mill business, and do not know whether Willingham is or not, but say he dictated size and style of mill, and claimed to know what he wanted. Aver the mill sent will cut 30,000 feet inch lumber per day, if properly handled, in poplar, or any other wood ordinarily meant by mill experts, workers or by buyers, and deny all contrary averments. Deny they assured him the mill would cut 30,000 feet yellow pine, or that he spent any
The trover and bail suit was enjoined.
- On the trial of the issues thus formed, much testimony of a conflicting character was offered by the opposing parties, and after being charged by the court, the jury returned a verdict in favor of the defendants for $2,800, and the complainant made a motion for a new trial, which was refused. The following are the grounds of the motion:
(1.) Because the court erred in refusing to allow complainant to prove by himself, “ that prior to entering into the contract with defendants, he was engaged in farming, and was successful therein ; had made a living for himself and family, and clear money besides; that lumber was at $16 per thousand; that he thought, if he. could get a mill, such as is set out in the contract, and at the price therein stated, he could make more money-in the lumber business
(2.) The court erred in refusing to allow complainant to prove by the witnesses aforesaid, “ the excess of profits he could have, made with a mill of 30,000 feet inch boards per day capacity, up to the time the test of the one sent ¿nded, when he could make but little or no- profit on one of the capacity sent.”-
(3.) Because the court erred in charging the jury: “Under this contract and evidence, the seller is not entitled to recover the machinery in kind, nor hire for the same.”
(4.) Also: “You will construe the whole contract and evidence together, and if you believe from the evidence that the machinery in the original contract was the kind delivered, in every respect, as to material, workmanship and capacity, you should find for the sellers the agreed price, without making any deductions.”
(5.) Also: “ If you believe that, afcer the sellers added other articles of machinery, it then was up to the contract in every respect, you should find for the, sellers the agreed price of the original machinery named in the contract, without any deduction.”
(6.) Also : “If you believe from the evidence that the machinery was not up to the contract, or guarantee, in quality or capacity, and there has been no loss to buyer in making the test, you should find for the sellers the market value, whatever that has been shown to be in the evidence, with interest, even if. that should be as much as the agreed price or less.”
(7.) Also : “If you believe from the evidence that the machinery was not up to the guarantee and contract, in any respect, either in defective material, workmanship or capacity, and that the buyer, in testing the machinery under the contract, incurred expense, damage or cost, as I have heretofore charged you, you will first see what is the difference between the agreed value of the machinery and its real value at the time of delivery, or at the time of the
(8.) Also: “It is incumbent on sellers'to prove the agreed price under the contract. This may be done by the contract, and the other evidence together with the contract. It is then incumbent on the buyer to show the inferiority of the machinery, its defects and its less value, and how much less than the agreed price by reason of the deficiencies ; and it is incumbent on him to prove to your satisfaction any special damage, loss or cost incurred in the test of the machinery under the contract, before he could have the same deducted, or reduce the amount shown to be due to the sellers.”
(9.) Also: “Was the mill and outfit, in original contract, such as it was guaranteed to be in every respect 1 If so, the trover suit should not be enjoined; the sellers should recover the agreed value of the original machinery; and, if the second lot of machinery was all right, the value of that also, as well as the legal interest on the amount from the time the notes fell due, with a special lien on the machinery for the amount.”
(10.) Also : “ If the mill and outfit, in the original contract, was not such as contracted for, in any material respect, without the addition of the second machinery, but with that was up, in every respect, to the contract and guarantee, the seller should recover the agreed value of the original machinery, with legal interest, without adding anything for the second lot.”
(12.) Also : “ In computing and estimating these dam.ages, expenses and losses of Willingham, you will not take into consideration such damages, loss or expense as he might have incurred from the following sources: in abandoning or changing his farming operations, and in leasing lands for the purpose of going into the saw-mill business, •cost of building houses, water-works, and of the appurtenances of the saw-mill business. These would not be proper subjects of damages, loss or cost to be estimated in Willingham’s favor, or to be set off against the sellers’ •demand.”
(13.) Also: “ But you will from the evidence determine whether the running of the mill through the necessary period of test was with a loss or profit. If with a loss, you will estimate that loss, and allow it to Willingham against this debt. If the mill was not run with a loss during the period, or if it was run with a profit, you would give ‘ that branch of the case no further consideration. You will then determine from the evidence what, if any, special
(14.) Also: “Under the pleading and evidence in this case, this is not a case of specific performance, and therefore you will not consider it in that view.”
(15.) Also, in referring to charge, as requested in writing : “ That if the seller made a contract to furnish a mill and outfit that would cut 30,000 feet .of'inch boárds per day, and was to get the buyer’s notes when he djd so,'and was to retain title to secure the notes, the seller cannot maintain his action of trover until he does comply with his contract, or the buyer relieves him therefrom.”
(16.) Also, in failing to give in charge the law of specific
(17.) Also, in failing to charge, that if the complainant had fulfilled his contract as far as gone, and was willing and ready to continue to do so, and the defendants had failed to fulfill or comply with their part of it, the jury should find enjoining the action of trover until they did specifically perform their part of the contract.
The defendants in this case, the plaintiffs in the trover case, did not elect to go for an alternative verdict; but during their concluding argument, the court, on its own motion, notified them, while they were urging the jury to give them the property and hire, that they could not get such a verdict, but it must be a money verdict, to which defendants’ counsel assented, and to all which complainant excepted.
Notwithstanding the numerous errors assigned in-the motion for a new trial, to the rejection of evidence, the refusals of the court to charge as requested by complainant’s solicitor, and to the charge of the court as given, and the direction as to the character of the verdict, in case one was found for the defendants, the material questions for determination may be reduced to three.
(1.) Was this a proper case for the specific execution of the contract in question ?
(2.) Was a correct rule for measuring the damages given in charge to the j ury, and consequently was the court right-in rejecting testimony offered under a different rule than-that which it laid down ?
(3.) Was there error in directing a money verdict for the defendants in case the jury should find for them?
The case of Masterton and another vs. The Mayor, etc., of Brooklyn, 7 Hill N. Y. R., 60, 67, 68, meets and settles every possible phase of the questions raised on the introduction of this testimony. The court, in giving the charge excepted to in the 7th and 13th grounds of the motion, made every deduction in favor of complainant to which he was entitled under the law ; in short, the entire charge sent up in the record is clear and able, just to the parties, and certainly leaves no room for complaint, especially on the part of the plaintiff in error. In the Southwestern R. R. Co. vs. Rowan and another, 43 Ga., 411, 414, which was a suit for refusing to receive cross-ties under a contract to deliver them, it was said, “ The general rule undoubtedly is, that the measure of damages in a contract like this is the difference between the agreed value and the market value of the thing contracted for, unless the article has no market value.” Loder vs. Kerkulé, 3 C. B. (N. S.), 128, closely resembles the present case, and there it was held that, “ in an action for the breach of a contract by delivering goods of a quality inferior to that contracted for, the proper measure of damages was the difference between
The defendants did not except, and there was no error in refusing to disturb the finding of the jury.
Judgment affirmed.