Steverson v. Bancroft , 25 Ga. App. 466 ( 1920 )

Broyles, C. J.

The petition as amended set out a cause of action, and the court did not err in overruling the general demurrer interposed.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The petition as amended sets out these letters and alleges, that the plaintiff’s order bore the number 1032, and that the two letters of the defendant, set forth above, constituted a complete and unqualified acceptance of the plaintiff’s order; that the contract calls for one car of B. and Better flooring at the price of $38.50 per m.; that there is a universal usage and custom among those engaged in the lumber business to the effect that when a “car of flooring ” is sold or purchased and the number of feet is not specified, the trade meaning of “ one car flooring ” is an average car of 20,000 feet, and according to the same usage and custom the letter “B” is used to represent and specify a particular grade of flooring which was well known to defendant and all dealers 'in lumber, and the abbreviation “Bet.” and the letter “m,” according to the said usage and custom, stand for the words “Better” and “thousand” respectively; that the usage and custom referred to was well known to the defendant, that the plaintiff and the defendant contracted with reference to it, and that it became by implication of law a part of the contract sued on in this case. It is alleged that under the law, shipment and delivery of the flooring in question should have been made within a reasonable time after instructions for shipping were given, no particular time for shipment being stipulated in the contract; that the time between June 26, 1919, and the date on which this suit was begun, September. 17, 1919, was a reasonable time within which to comply with the contract, but the defendant failed and refused to ship said lumber within said time, and the failure to ship within said time constituted a breach of the contract. It is alleged that the market price of the flooring described was $80.50 per thousand feet on September 17, 1919; and the plaintiff sues for the difference between this price and the contract price.

A. A. & E. L. Meyer, for plaintiff in error,

cited: 21 Ga. App. 114-; 116 Ga. 108; Elliott, Contracts, secs. 6, 7, 26, 30, 36, 37, 38, 4-2; 13 Corpus Juris, 266-7, 281-2; 93 Mich. 491 (24 L. R. A. 357); Civil Code (1910), § 3222, par. 7; Ell. Con., secs. 1213, 1302; 137 Ga. 411; 81 Ga. 704; 73 Ga. 400; 100 Ga. 645; 110 Ga. 159; 112 Ga. 359; 123 Ga. 415; 125 Ga. 198; 127 Ga. 574; 141 Ga. 713; 2 Ga. App. 73; 19 Ga. App. 53. 11 Ga. App. 742 and 21 Ga. App. 160, distinguished.

Napier, Wright & Wood, contra,

cited: 5 Ga. App. 436; 11 Ga. App, 744 ; 21 Ga. App. 114 (2), 160