Bainbridge Oil Co. v. Crawford Oil Mill , 138 Ga. 741 ( 1912 )

Atkinson, J.

Whether the plaintiff committed such a breach of the contract with respect to the August delivery as to authorize the defendant to cancel the contract is one of the controlling questions in this case. It was the duty of the plaintiff to furnish tank ears at either Bainbridge, Quitman, or Yaldosta, Georgia, as the defendant might appoint. But it had all of August in which to do so. Before the plaintiff’s time expired the defendant, on August 25, sold to another the oil intended for the August delivery, for less than the contract price, and charged the plaintiff with the difference, amounting to $160, and on August 31, still before the expiration of the plaintiff’s time, made a draft on the plaintiff through a bank for the amount 'above stated. This action by the defendant was premature and unauthorized. After the oil had thus been disposed of, the plaintiff was under no duty to send a tank car for reception of the August delivery of oil, especially in the absence of a request by the defendant so to do, and a tender of other oil of the kind specified in the contract. Under the circumstances, there was no breach of duty by the plaintiff, and the defendant was not authorized to disregard the rest of the contract on account of a supposed breach. This conclusion is demanded by the admissions in the pleadings and the evidence above mentioned, independently of other evidence upon the admission of which error is assigned. Accordingly, if there had been any error in the court’s ruling upon the admissibility of evidence, it would have been harmless.

As indicated above, the defendant was not excused from performance of the contract relatively to the September, October, November, December, and January deliveries. Under its admissions in the plea and the uncontradicted evidence, it did not make any of those deliveries, though the plaintiff demanded the oil and offered to pay for it in the manner and at the proper time provided by the contract. There was a clear breach of the contract by the defendant with reference to each of these deliveries. The plaintiff suffered damages in excess of the verdict by the measure which fixed the damage at the difference between the contract price and the market price at the time and place when the several deliveries should have been made. It was urged that if there was a breach by defendant, it occurred on September 13, .when the defendant in effect notified the plaintiff that it regarded the contract as canceled, and would not thereafter deliver any oil under it, and that the market price prevailing on that date should have fixed the time at which plaintiff’s damages should have been estimated. But the plaintiff did not elect to, treat the entire contract as terminated, but on the contrary continued to demand its performance. Under these conditions it had a right to demand the several deliveries for September and ensuing months, as above indicated, and it would have been the duty of the defendant to comply with such demand; but where the defendant refused to do so, thereby committing separate breaches of the contract, the plaintiff’s damages would be measured by the difference between the contract price and the market price at the times when the several deliveries should have been made. Ford v. Lawson, 133 Ga. 237 (5, 6), 238 (65 S. E. 444). Under the views above expressed, a verdict for the plaintiff was demanded for some amount, and the evidence authorized the verdict found. None of the evidence which was excluded over objection, nor any of the excerpts from the charge, upon which error was assigned, could have affected the amount of the recovery. Some of these excerpts from the charge were inaccurate, but none of them, nor the assignments of error upon the court’s refusal to( charge, were sufficient to require the grant of a new trial.

Judgment affirmed.

All the Justices concur.