Watson v. Hazlehurst & McAllister , 127 Ga. 298 ( 1907 )

Cobb, P. J.

(After stating the facts.) The petition was not subject to any of the grounds taken in the demurrer. It set forth the fact that the plaintiffs had purchased of the defendant 50 bales of cotton. This averment, that they had purehásed, was equivalent to an averment that they had agreed to accept upon delivery. The fact that it appeared from the averments of the petition that the defendant expected to purchase the cotton in order to comply with his contract did not render the contract illegal. An executory contract for the sale of an article is not illegal merely for the reason that the seller has not the goods in 'his possession and expects to purchase them at some time before the date of delivery for the purpose of complying with his contract. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199. The contract alleged was valid upon its face, and there was nothing to indicate, in the averments in the petition, that it was a mere speculation upon chances. The averments were such as to indicate with clearness that an actual delivery of the article, at the time and place agreed upon, was the purpose of both parties to the transaction. If it was in reality a mere speculation upon chances, this was a matter of defense. Forsyth Mfg. Co. v. Gastlen, supra. The uncontradicted evidence demanded a finding that the contract had been made as alleged, and that there had been a failure to comply with its terms, and that the plaintiffs had sustained damages in the amount alleged. Under such circumstances there was no error in directing a verdict for the plaintiff.

It is contended, however, that the question as to whát constituted ■a bale of cotton was a question for the jury to determine. Even if the amendment to the petition, which is referred to in the statement of facts, was not allowed by the court, it appears, from the brief of the evidence, that the plaintiffs introduced, without objection, testimony that the term “bale of cotton,” as known to the commercial world, meant a bale weighing‘500 pounds. There was mo evidence contradicting the testimony thus offered, and it will be presumed that the contract was made in the light of this usage of the commercial world. Stewart v. Cook, 118 Ga. 541. We see no-reason for reversing the judgment.

Judgment affirmed,.

All the Justices concur, except Fish, O. J., absent.