Brumby v. Barnard , 60 Ga. 292 ( 1878 )

Bleckley, Judge.

1. The writer of this opinion knows from personal experience that an invalid may be able to ramble among the mountains and fish a little for speckled trout, without being fit for business in the court-house. The other members of the court are weak in the faith, and seem loath to recognize a state of health so ambiguous. We all think that, as the defense on the record was not sound in law, the refusal of a continuance to establish it was not positive error.

2. The bond was to produce certain property or pay a certain debt. Which they would do was at the option of the obligors. The object of the contract was evidently to make the debt secure, the same having arisen out of transportation of the property, and being an amount agreed upon as due for freight thereon. It was doubtless assumed that the property was worth more than its own freight. The scheme of settlement was, to have security for the return of the whole property, so that the opportunity to realize the entire freight bill out of the same might be, after delivery to the consignee, just what it would have been had delivery not taken place. But a return of the property was a secondary and subordinate consideration. The main thing was to collect the freight; and the consequence of a failure to return the property was, that the freight was to be paid by the makers of the bond. They had but one way to save themselves from paying the freight, and that was, to put the other party in statu quo. This they failed to do. Some of the property was returned, sold, and the proceeds ap-' plied to the debt. They retained the balance of the property, and converted it to their own use. The claim they now make is, that instead of completing the discharge of the debt as the result of their failure to produce all the property, they shall account simply for the value of the property not produced, making the latter the measure of damages in the present action on the bond. The contract was to produce the property or pay the debt. The performance offered is to produce some of the property, and pay, not the debt, but the value of the balance of the property. The obligors did not bargain for the right of retaining any of the property, except on condition of paying the debt; they now want that right, on condition of paying less than the debt — that is, the value of so much of the property as they have thought proper to keep and consume. This would throw the risk of decline in price upon the plaintiff, without giving him a chance to benefit by a future advance. The defendants never stipulated for the right of keeping the property at its actual value, but only at the amount of the debt. The plaintiff was a creditor in possession, having the whole property for security. The defendants substituted for that security their engagement to restore it in full or pay the debt in full. Not having done the former, they must do the latter. So it is “ nominated in the bond.” 7 John., 465 ; 2 Ad. on Cont., 7 §319.

3. When a part of the property was produced and accepted, the obligee had a right to expect that the balance, would be forthcoming also. His acceptance, of so much was no new undertaking on his part. It did not oblige him to measure his recovery on the bond by the value of the residue, instead of the balance of the debt.

4. Parol evidence was not admissible to vary the terms of the bond, in respect to the true amount of the debt or the true quantity of the property. Both these matters were set forth in the writing, and there was no proper allegation of fraud, accident or mistake to serve as the basis of reforming the instrument. N othing in the whole range of the contract was more material than these two elements, the amount of the debt, and the quantity of the property. The attempted defense was without merit, and the court did not err in the disposition made of it.

Cited in the argument: (continuance) Code, §§3524, 3521; (damages) Ib. §2941; 17 Ga., 609; 44 Ib. 507; 5 Metcalf, 62; Sedgwick on Dam., 491, note; 19 Barb., 388 ; 16 N. Y., 275.

Judgment affirmed.