Chatham Ice Cream Co. v. Sakakeeny , 27 Ga. App. 409 ( 1921 )

Bloodworth, J.

Gabriel L. Sakakeeny sued the Chatham Ice Cream Company, alleging, in part, that in April, 1919, the Ice Cream Company entered into a contract with him for three carloads of ice-cream cones at $4.25 per thousand, f. o. b. cars St. Louis, Mo., each car to contain 600 cases, and each case to contain 1000 cones, the same to be delivered by August 1, 1919, and shipment to be .made at any time between the date of the order and August 1, 1919, in carload lots only; that the plaintiff shipped in May one carload of cones, as provided for in the contract, which carload was received and accepted by the defendant in part performance of the contract; that in June, 1919, the plaintiff communicated with the defendant, informing the defendant that the other two cars were ready for shipment, and désiring to know when the defendant wished the shipment to go forward; that the defendant on June 9 answered in a letter stating that some of its machines had not been installed, and that it had no room to store additional cones, and would not have, “ for a little while at least,” and would advise later as to when to'ship, and requested that shipment of the two cars be held up until advice from it as to when they should be shipped; that pursuant to said instructions the plaintiff held the two cars ready for shipment on the defendant’s demand; that the plaintiff did not receive shipping instructions during that season, and at the beginning of the next season, May 22, 1920, called the defendant’s attention to the two ears it was holding for shipment under the contract; that the defendant then disclaimed any knowledge of said order; that the plaintiff then, through his attorneys, submitted the contracts to the defendant, and on August 11, 1920, the defendant “refused definitely to accept shipment of the remaining two cars, and has refused to make any settlement therefor;” that “ during August, 1920, and at the time of [the] aforesaid breach of contract, cones of the kind contracted for were selling for and at [the] market value in St. Louis of $3.00 per thousand, or $1.25 per thousand less tlian the contract price,” and that, “ as a result of the facts herein set forth, . . petitioner has been specially damaged in the sum of $1500.00, and-interest on the same from August 11, 1920;” and for this amount the plaintiff prays judgment. A general demurrer to the petition was overruled, and the defendant excepted.

The petition set forth a cause of action, and the demurrer was properly overruled.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.