Navassa Guano Co. v. Commercial Guano Co. , 93 Ga. 92 ( 1894 )

Lumpkin, Justice.

This case, by consent, was tried by his honor, Judge MaoDonell, without the intervention of a jury. He rendered a judgment in favor of the defendant, and this is'the main error complained of in the bill of exceptions. The opinion delivered by the trial judge is set forth in full by the reporter, and it contains all that is necessary to a clear understanding of the case.

¥e fully agree with the judge that the contract was plain and unambiguous, and shall deal with the case upon the assumption that all his findings upon issues of fact are correct. There can, we think, be no question that this is the proper course for us to pursue. His conclusion that the Commercial Gruano Company in making, through its agents, the purchase from Coleman ■& Ray, did not act upon any representations made by the sellers, but that these agents relied entirely upon their own judgment as to the quantity of fertilizer in the pile, is clear and unequivocal, and undoubtedly well supported by the evidence. Upon the question whether or not the sellers, or either of them, practiced any actual fraud in the representations made by them as to quantity, the conclusion of the judge is not distinctly stated; but it is certainly fair to say he does not find that any such fraud was practiced. We are therefore authorized in saying that the existence of such fraud was not made to appear, and we think the case should be decided upon the theory that it was not proved at all. Assuming this to be true, we are constrained to hold that the learned judge erred in the conclusion he reached. We adopt as the true law of the case tbe doctrine laid down in Brawley v. United States, 96 U. S. 168, cited in the judge’s opinion. We do not think the doctrine of section 2642 of the code, in relation to the sale of land, nor the various decisions of this court construing this section, applicable to the facts of this case. It must not be overlooked that the entire pile of fertilizer was bought, not at a fixed total sum, but for a stated price per ton, and enforcing the contract as made gives to the purchaser precisely what he bought, and at the price agreed upon. An express provision was made in the contract for any variation in the estimated quantity; hence, there can be no legal fraud simply because there was in fact an excess over the quantity it was supposed the pile contained. That the defendant company did not intend simply to take enough fertilizer to settle its debt is conclusively shown by the fact that they agreed to take more than 253^ tons, that being the exact quantity which would have cancelled their debt of $5,700.00 at the agreed price of $22.50 per ton. On the whole, we are satisfied that the plaintiff was entitled to a recovery, and that the judge below erred in holding otherwise. Judgment reversed.