Southern Granite Co. v. Venable Bros. , 131 Ga. 599 ( 1908 )

Beck, J.

(After stating the facts.)

The contention of the plaintiff in error is that the petition sets forth no cause of action against the Southern Granite Company, but that on the contrary said petition, by its allegations and exhibits, shows that such cause of action as the plaintiffs might have-had was against other parties. With this contention of the plaintiff in error we are unable to agree. It clearly appears from the allegations in the petition and the contracts attached thereto as exhibits that a certain amount of stone was to be shipped by the three companies: the Southern Granite Company, T. F. McClure & Sons Company, and Venable Brothers, and that the plaintiff in error was, under the contract, entitled to ship to the contractors thirty-seven and one half per cent, of the stone; T. F. McClure & Sons Company, twenty-five per cent; and Venable Brothers thirty-seven and one half per cent. ‘Each of the parties named knew, under the explicit terms of the contract, that they were only entitled to ship that percentage of the stone allotted to them by the terms of the contract into which they had entered, so long as the other companies were able to fill such orders as might be given them for stone; and each of the companies knew, furthermore, if they shipped more than their allotted percentage, that, to the extent of the excess of the shipments over the percentage which they were entitled to make, other companies would be deprived of the right which they were to enjoy of shipping their full percentage. It is alleged in the petition that the shipments of the stone were to be made upon orders sent by J. A. Eberhart; who was vice-president of the defendant company, as well as one of the contractors with the City of Cincinnati. The defendant company, for a sufficient consideration, had agreed, in the contract under consideration, that of the stone required by the contractors the plaintiffs in this action should be allowed to ship, as stated above, a certain percentage to fill the contract for paving with the City of Cincinnati. It would be putting a strained construction upon the contract to say, that, while the plaintiffs complain that the breach of the contract consisted in the fact that they were not allowed by the defendant, the Southern Granite Company, to ship their proportion of the stone, the petition is fatally defective in that it does not state “how the defendant company disallowed or resisted in shipments by Tenable Brothers, nor does the petition show that the Southern Granite Company ever undertook to order out any stone from anybody in connection with this matter.” Eor perfectly good and sufficient reasons, the stone was to be shipped to Cincinnati on different occasions; the entire amount could neither be sent nor could it have been received and handled in Cincinnati if all shipped at once. Eor obvious economic reasons, the stone was to be forwarded to Cincinnati in such amounts ■ as required there by the contractors. Now when the orders for shipments came from the contractors in Cincinnati to the producing companies, inasmuch as each of these companies knew what percentage of the stone they were entitled to ship, it could not matter which one of -the companies received the orders; for the company receiving could not but understand, if it had already .shipped that percentage of the stone which'it was entitled to ship under the terms of the contracts with the other producing companies, that the order should be delivered to that company which had not shipped the proportion of the stone which it was entitled to ship. And if such an order as the one last referred to should come into the hands of the company which had already shipped a larger proportion of the stone than'that called for by the contract, and the company receiving such order should fill the same, thereby' depriving the company which was entitled to furnish the stone called for by the order of the opportunity of filling it, it plight be said, without too greatly stretching" the meaning of the word, that the former had not allowed the latter to make the shipment to which it was entitled. And especially is this true in view of the fact that the party who was to give the order was vice-president of the company which seems to have been favored in the matter of the distribution of the orders for granite. The contracts themselves do not state explicitly who were to issue these orders, but it is distinctly alleged in the petition • that the stone was to be shipped upon the orders of J. A. Eberhart, the vicej-president of the defendant company; for, in paragraph 5 of the amendment to plaintiffs’ petition, it is alleged “that petitioners were to ship said stone only upon the order of the defendant as given through their vice-president, J. A. Eberhart.” If it could be said that this allegation refers only to the shipments which were to be made after the filing of the suit, still we have in the original petition (paragraph 10) the allegation that the “said Eberhart, vice-president of the Southern Granite Company, is in the active charge of the contract work of paving the streets above mentioned, in the City of Cincinnati, and that all orders of stone to be shipped are made by him.” While the relation existing between the producing companies is not that existing between the members of a partnership, they do sustain such a relation to one another, having entered into a joint compromise; as would require of them perfect good faith in the performance of the duties and the exercise of the privileges and the enjoyment of the advantages arising from the perform-' anee of the contract which they had jointly undertaken to perform. When they entered into the contract these • companies considered that the terms of the contract secured to them certain advantages which could not have been secured but for the concurrence of all in the enterprise contemplated. And it would be inequitable to permit the defendant company, by taking advantage of the fact that it was favored in the matter of having orders sent to it, to deprive another party to the contract of the advantages and profits which it would have enjoyed and received had the 'contract been carried out in good faith by all parties signing it. In this connection, see the case of Forlaw v. Augusta Naval Stores Company, 124 Ga. 261 (6), (52 S. E. 898).

The foregoing disposes of the questions raised by the demurrers, which were general in their nature, and which are argued in the brief of counsel for plaintiff in error. The special demurrer, on the ground that the “petition does not show the place of making the contract,” is not referred to nor urged in the brief of counsel, and the question raised by it is not dealt with in the opinion.

Judgment affirmed.

All the Justices concur.