Jowers v. Baker , 57 Ga. 81 ( 1876 )

Bleckley, Judge.

1. The contract declared upon was construed by this court at July term, 1875, on a writ of error in the same case between the same parties: Jowers vs. Baker, 55 Georgia Reports, 184. U ntil the plaintiff has proved substantially that contract, and a breach thereof by defendant, he cannot recover. While the declaration stands as it is, there is no propriety in instructing the jury upon any other contract, further than to tell them that no other contract imposed any obligation that is now sought to be enforced. A case should be tried on the pleadings as well as on the evidence. Let each party stand by what he has pleaded, and bring up'his evidence, if he can, to what he has thus put on the record. If his pleading is defective, let him amend, so far as the rules of amendment allow ; but until he does amend, the court and jury should both hold a firm grasp on the precise matters alleged. In finding a general verdict, it is not enough for the jury to ascertain what the facts are; they must go further, under proper instructions from the court, and determine whether or not the facts established support the declaration. We think it was quite irrelevant to charge the jury on any obligation to furnish as many stocks as might be sawed with profit and reasonably necessary for the greatest success of the partnership enterprise. If this was meant as a measure of the defendant’s obligation under the contract declared upon, it was a different measure from that which this court recognized and announced when the case was here before. If, on the other hand, it was meant to apply to some other contract, the jury were drawn off to deal with a case other than the one on trial. The harm to the plaintiff in thus diverting their attention was this : On that branch of the case which related to quantity, the jury were concerned to know what was requisite to keep the mill constantly running; if they thought (he contract wras, in fact, as alleged, that was the quantity for them to work out; but instead of concentrating on that, they were allowed to straggle off upon the inquiry as to how much was reasonably necessary for the greatest success of the partnership enterprise. With this inquiry they had, or should have had, nothing to do. How much could the mill have sawed ? How much less did the defendant furnish? What, if anything, was the plaintiff’s loss on the difference? These were the three remaining questions, if the jury were satisfied that the contract was what the plaintiff alleged it to be; and if they believed, from the evidence, that such was not the contract, there was no remaining question at all — the case was at an end. The form of the charge was also a little open to misconstruction, as the jury may have understood the court to intimate an opinion that nothing definite was said as to quantity in making the contract.

2. It seems to us that the charge on the subject of notice to the defendant was not called for. The defendant’s position was, that he never contracted to furnish stocks to the full capacity, of the mill. His own sworn testimony was, that he did not furnish that many, and that the plaintiff complained to him of a deficiency. He neither pleaded nor proved want of notice. He claimed to be free by his contract to furnish less than enough to keep the mill constantly running. Notice to him was not in issue.

3. But if it had been, surely it was enough for the plaintiff to complain to him, without giving him any other notice. Generally, a man should attend to what he has contracted to do, without either complaint or notice from his associates in business. Eor aught that appears, the defendant knew quite as well as the plaintiff what supply was needed and what was furnished. The mill was on his land, and probably was as convenient to his personal observation as to that of the plaintiff. If the supply was short, and the plaintiff, knowing the fact, and having convenient opportunity to complain, or remonstrate, his failure to do so, if he did fail, might be taken as a waiver of strict performance. But in the absence of such waiver, the defendant could take no benefit from his voluntary ignorance of his own short-comings. Let the case be tried over.

Judgment reversed.