74 Ga. 755 | Ga. | 1885
The issue submitted in this case was upon a warrant against a tenant holding over and a counter-affidavit. There was a verdict finding the issue in favor of the plaintiff and a judgment entered thereon removing the tenant from the premises, and awarding double rent against him and the surety on his bond. The defendant made a motion for a new trial, which was refused, and he excepted.
Each party selected his man, and the third was called in, and they made an invoice of the stock, and assessed its value item by item. This inventory and assessment they entered in a book, and each one of the assessors was sworn on the trial. They could state from memory nothing but general results. The written inventory, made out and signed by them, was in court; the defendant offered it in evidence, but it was rejected, and he excepted to its rejection, and complained thereof in the third ground of his motion for a new trial. After making all deductions, this inventory aggregated more than $800. It seems to have been rejected because the judge was of opinion that the contract contemplated the submission of the questions in controversy between the parties to arbitration, and there was no submission in writing, etc. This we infer from the charge excepted to in the 4th ground of the motion for a new trial, which is as follows:
“ The law says an arbitration must be submitted in writing, and if you find from the evidence that there was no submission in writing of an arbitration, specifying the names of the arbitrators, then the court instructs you there is no compliance on the part of Willingham (the defendant) with his part of the agreement. If there was no attempt to procure a legal arbitration, such as the law provides for, he failed on his part to comply with his obligation, and Yeal (the plaintiff) could refuse to comply or accept the goods because the terms were that there was to be an arbitration, and it was to be by the two merchants
To us it is quite apparent that neither an arbitration at the common law nor one under the statute, as provided for in sections 2S83 to 2889, or in sections 4225 of the Code and those which immediately follow, was in the contemplation of the parties. They bargained for the sale of the goods, and if they failed to agree upon the valuation to be fixed upon them, then the price was to be settled by the persons described in the written agreement. That this was a contract of sale, good and valid under the law, and founded upon a sufficient consideration, see Code, §§2629, 2644, 2646. While the delivery of goods is generally essential to the perfection of a sale, yet it may be dispensed with, if such be the intention of the parties to the contract. The consideration to support a sale must be valuable, and must be either definite, or there must be an agreement made by which it can be rendered certain. Such are the requirements of our law, as contained in the above cited sections of the Code, and which are in accordance with the well settled principles of the general law regulating sales. The agreement to ascertain the price of the goods in a particular manner, renders definite that which was left uncertain by the terms of the contract, and does not convert this purchase of the goods into an arrangment to submit to arbitration any matter connected with the transaction. 5 Wallace, 790.
It is suggested that, notwithstanding there may be error in this respect, it was not injurious to the defendant, inasmuch as the contract could not be consummated, in consequence of the goods having been seized under an execution against the defendant, and to which they were liable, before the completion of the contract. But upon looking into the record, it will be seen that, before the valuation was .made, the plaintiff was apprised of this execution, and
How far the plaintiff was justifiable in refusing to comply with his contract, and how far he is chargeable with the appraised value of the goods, should be submitted to the jury; and if he is found liable, then the state of the accounts between the parties should be taken, in order to determine what amount is due from the defendant, and whether he is in fact liable under this proceeding. It may turn out that he has paid enough to entitle him to a conveyance of the premises, and if so, this would effectually dissolve the relation of landlord and tenant, which existed at the execution of the contract. These are the issues that should be tried, instead of those submitted by the ruling and charge of the court. We intimate no opinion as to how these issues should be found, as the case must go back for another hearing. To do so would be manifestly improper. All that we decide is that the questions growing out of the record have not been submitted, with proper instructions for their determination.
Judgment reversed.
The first ground of the motion was “ because the court refused, upon motion of the defendant, after the plaintiff had concluded his evidence, to non-suit the plaintiff and.dismiss his warrant.”