Opinion
35584.
DECIDED APRIL 8, 1955. REHEARING DENIED MAY 6, 1955.
Breach of contract. Before Judge Atkinson. Crawford Superior Court. December 1, 1954.
Geo. B. Culpepper, Jr., D. W. Wells, for plaintiffs in error.
Harris, Russell, Weaver Watkins, T. Reese Watkins, W. J. Wallace, contra.
The court did not err in directing a verdict for the plaintiff as regards the general and the special grounds, for the reason set forth in the opinion.
DECIDED APRIL 8, 1955 — REHEARING DENIED MAY 6, 1955.
Cotton Producers Association (hereinafter called the plaintiff) filed its petition against G. C. Tribble, Mrs. G. C. Tribble, C. H. Tribble, and T. B. Tribble (hereinafter called the defendants), in the Superior Court of Crawford County, Georgia, alleging that the defendants, a partnership, and individuals therein were indebted to the plaintiff under the terms of a contract executed February 27, 1953, in which the defendants agreed to purchase from the plaintiff 10,000 bushels of white corn at the stipulated price of $2.48 per bushel; that the corn was to be delivered to the defendants at the storage plant of said plaintiff at Waynesboro, Georgia; that the contract called for the defendants to pay to the plaintiff 2 cents per bushel storage on all of the corn remaining undelivered under said contract after March 31, 1953; that all of the said corn was to be accepted and paid for on or before August 31, 1953; that the defendants accepted and paid for 3,792.87 bushels of said corn, and refused to accept the remaining 6,207.13 bushels; that the plaintiff had notified the defendants that the plaintiff would sell said corn to the best advantage for the plaintiff's account; that, after disposing of said corn in such a manner, the plaintiff sustained a net loss of $1.03 per bushel on the 6.207.13 bushels, or a total of $6,393.34, and the plaintiff prayed for judgment for such an amount; that, subsequently thereto, the plaintiff amended said petition, actually setting out that the contract to purchase was a parol contract with Tom Wiggins acting for the plaintiff, and C. H. Tribble acting for the defendants; that the said parol contract was entered into on February 27, 1953, was reduced to writing by the defendants, and the written memorandum of said contract was forwarded to the plaintiff; that said parol contract was originally entered into and concluded by the said C. H. Tribble and Tom Wiggins in Bibb County, Georgia. The amendment to the petition set out that the defendants without just cause refused to accept delivery of the 6,207.13 bushels, or any part thereof, and said refusal was transmitted by the defendants to the plaintiff. The amendment further contained a corrected amount of damages, amounting to $6,331.27, and struck from the prayer the sum "$6,393.24" and inserted in lieu thereof the sum of "$6,331.27".
The defendants filed an answer denying all the allegations of the petition except the paragraphs with reference to the residence of the defendants.
The defendants filed an amendment, setting out that the corn was of inferior grade and defective quality and not suited for the purpose for which it was purchased, that is, to be ground into meal by the defendants, and the defendants sustained substantial loss on the corn, which was accepted and paid for; that meal ground from said corn was returned to the defendants in large quantities because it was so defective, and the last several loads so ground into meal had to be taken up by the defendants from customers and sold for feed; that, when the last load of corn was accepted by the defendants, it was in a decayed condition and the odor was so bad that the defendants promptly notified the plaintiff that, because of the inferior, damaged, and decayed condition of the corn, the defendants could no longer accept any corn under the contract, as same had been breached by the plaintiff. Before the case was committed to the jury, the defendants filed a further amendment, setting out that the plaintiff could not, or would not, furnish corn as called for under the contract to purchase; that it failed and refused to deliver such corn, although the defendants notified the plaintiff from time to time that the defendants were willing and able to take all of the corn purchased under the contract, provided it was good corn; that the corn which was actually accepted by the defendants was wholly unfitted for any use by the defendants; and that said corn was accepted until the defendants ascertained that the plaintiff was unable or unwilling and refused to furnish corn according to the contract, at which time the defendants refused to accept any more corn of such inferior and worthless grade, at the same time notifying the plaintiff that the defendants were willing to take all of the contract corn provided it would come up to specifications called for by the contract.
At the trial, after the evidence was in, the court, upon an oral motion of the attorney for the plaintiff, directed a verdict in its favor for $6,009.97. Following said verdict, the court entered a judgment for the plaintiff and against the defendants in the sum of $6,009.97 with interest at 7% per annum until paid, together with the costs.
The attorney for the defendants immediately filed a motion for new trial on the general grounds, and later filed an amendment, assigning as error the direction of said verdict and the signing of said judgment by the court, on the ground that there were questions of fact which should have been passed upon by the jury, and insisted upon all of the general grounds and the additional grounds submitted in the amendment. The judge denied the motion for new trial on all grounds. To this order the defendant excepted and the case is here for a review of the ruling.
1. Upon analyzing the record, we conclude that the defendants have admitted the execution and the validity of the contract by which they agreed to purchase ten thousand bushels of white corn at a specified price, plus storage, after March, 1953. The defendants admit that they accepted, used, and paid for 3,792.87 bushels of corn during the month of August, 1953. There is no dispute regarding the fact that the defendants refused to take the balance of 6,207.13 bushels of corn under the contract. There is no dispute as to the agreed price, including storage. There is no conflict in the proof of loss sustained by the plaintiff upon the resale of the 6,207.13 bushels remaining undelivered. There is no dispute regarding the evidence that the defendant refused then and there to take the balance of the corn undelivered. There is no conflict in the evidence that, when the notice of refusal was conveyed by the defendants to the plaintiff, they were notified that the remaining 6,207.13 bushels of corn would be resold for the account of the plaintiff at the earliest possible time and for the best obtainable price, and that the defendants would be held responsible for any loss sustained by the plaintiff for such resale. There is no dispute regarding the evidence that the balance of the corn was sold during September and that a full accounting was made for the price obtained on such resale. There is no dispute regarding the evidence that the exact amount of loss sustained by the plaintiff on the resale was $6,009.97. We think the record shows that the only issue of fact presented by the pleadings and the evidence in the case is as to the quality of the 3,792.87 bushels of corn accepted, paid for, and used by the defendant.
The witnesses for the defendant in the trial of the case gave evidence solely as to the condition of the corn which the defendant accepted, paid for, and used. The defendant contends that, since the evidence as to the quality of the corn accepted, paid for, and used by the defendant was in conflict, the trial court committed reversible error in not submitting the case to the jury for determination. To state it differently, did the trial court commit reversible error in directing a verdict for the plaintiff? In Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279 (3) ( 55 S.E. 50), the court said: "Where there was a contract of sale of corn and a portion was delivered, paid for, and used by the purchaser, he cannot rescind the contract upon the ground that the quantity received and accepted by him was inferior in quality to that stipulated in the contract." In division 3 of the same opinion, the court said: "It was their contention on the trial that the corn which was accepted by them was of inferior grade, and because of this fact, and the failure of plaintiff to deliver within the stipulated period, they refused to accept the balance of the corn. If a vendee has accepted a portion of a quantity of goods contracted for, and they prove inferior to those stipulated for, he cannot for this reason refuse to accept the residue; but if the residue prove inferior, he may refuse to accept them."
This court has passed upon the issue here in question in Acme Brewing Co. v. Rahr Sons Co., 10 Ga. App. 564 ( 73 S.E. 955). The facts in that case are that the contract was for 10,000 bushels of malt to be delivered between May and October. Shipments were made on different occasions, totaling 7,979 bushels, ordered and accepted by the defendant, who had paid the contract price therefor. The defendant in that case contended that each of the shipments accepted and paid for contained malt inferior in kind and quality to those intended by the contract, due to the presence of unreasonable trash and screening in every shipment. The defendant contended that, since the plaintiff had breached its contract by shipping inferior malt, he was not bound to accept the balance of the malt under the contract. The trial court struck the defendant's answer and thereafter entered judgment against the defendant. This court, relying on the ruling of the Supreme Court in Henderson Elevator Co. v. North Georgia Milling Co., supra, affirmed the trial court's action. The headnote in the Acme Brewing Company case is as follows: "The contract was entire. There was no offer or attempt to return any of the malt, but on the contrary a deduction for deficiency in quality was accepted by the purchaser, and the malt put to his own use; consequently the purchaser estopped himself from rescinding the contract. The facts as stated by the pleadings are practically and substantially identical with those in Henderson Elevator Company v. North Georgia Milling Company, 126 Ga. 279 ( 55 S.E. 50), and the decision of the Supreme Court in that case is fully controlling; so there was no error in striking the defendant's answer, nor in thereafter entering judgment for the plaintiff."
In Georgia Wool Stock Co. v. Trans-Atlantic Clock Watch Co., 33 Ga. App. 465 ( 126 S.E. 902), this court sustained a verdict in a case similar to the case at bar, and among other pertinent observations, said: "The defendant, having accepted and paid for the first shipment of goods under the contract, could not rescind and refuse to accept the second shipment on the ground that a part of the goods first shipped were defective." In the same case the court further said: "There being no sort of legal or tangible proof as to any defects in the articles included in the second shipment, a verdict for the plaintiff for the contract price of the articles included in the second shipment was properly directed." See Stewart-Morehead Co. v. Bibb Mfg. Co., 32 Ga. App. 507 ( 124 S.E. 64); Seabolt v. Christian, 82 Ga. App. 167 ( 60 S.E.2d 540); and Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559 ( 89 S.E. 486).
Under the pleadings and the evidence, when applied to the law as hereinabove set forth by quotations and citations, the court did not err in directing the verdict for the plaintiff, since such verdict was demanded.
We have taken into consideration the position of counsel for the defendants to the effect that, since the corn delivered and paid for was defective, the jury would be authorized under the evidence to find that the defendant was authorized to refuse to accept the remainder of the corn in dispute. In support of this contention, our attention is called to Code §§ 96-304, 96-305; Mound City Roofing Tile Co. v. Walker, 33 Ga. App. 207 ( 125 S.E. 863); Snowden v. Waterman Co., 105 Ga. 384 ( 31 S.E. 110); Means v. Subers, 115 Ga. 371 ( 41 S.E. 633); Goodrich Rubber Co. v. Capital City Tile c. Co., 34 Ga. App. 462 ( 129 S.E. 875); National Computing Scale Co. v. Eaves, 116 Ga. 511 ( 42 S.E. 783); Kronman v. Roush Produce Co., 3 Ga. App. 152 ( 59 S.E. 320); Courier-Journal v. Howard, 119 Ga. 378 ( 46 S.E. 440). A careful reading of the authorities cited on behalf of the defendants shows no authority applicable to the facts in the instant case.
The special ground is without merit for the reasons given hereinabove.
Judgment affirmed. Townsend and Carlisle, JJ., concur.