Ford & Co. v. Lawson , 133 Ga. 237 ( 1909 )

Lumpkin, J.

(After stating the foregoing facts.)

1. The defendant contracted to sell and deliver to the plaintiffs 200 bales of cotton. As the time for delivery approached he wrote and telegraphed to the plaintiffs, begging to be relieved from the trade, and then repudiating it. In one telegram he said, “I can not stand to trade.” In another he said, “Trade off. Can’t get cotton.” Nevertheless he denied the allegation that he broke the contract or refused to deliver the cotton according to the contract; and the jury must have accepted his statement, as they found a verdict in his favor. He pleaded that there was a rescission of the contract on the same day on which it was made; but he introduced no evidence to sustain the plea. The case revolved mainly about two questions: (1) What kind of cotton did the defendant contract to deliver? (2) In spite of his letters and telegrams before the time specified for delivery, in regard to being released from the contract and declaring the trade off, when demand was made upon him by the agent of the plaintiffs, for compliance, at the time fixed therefor, did he fail and refuse to deliver cotton of the kind which he had contracted to deliver; or did he offer to deliver cotton of a different quality; or did he have and tender or offer to deliver the cotton contracted for, of the quality provided in the contract, and did the plaintiffs’ agent decline it? The presiding judge erred in his rulings in regard to these two questions, and a new trial must result.

The telegrams closing the contract of sale referred to 200 bales of “good” c-otton. The letter of the plaintiffs confirming their telegram of acceptance referred to “two hundred as described.” There was evidence tending to show that the expression “good cotton” included several grades indicated by numbers in the Atlanta market, or, as stated by a witness, “Atlanta l’s, 2’s, 3’s and 4’s are all good cotton.” The term “good cotton” was subject to parol explanation. While the meaning of the words, as ordinarily used in the cotton market, may have been as above indicated, yet if the parties, in dealing with a particular transaction in regard to the sale of certain cotton, used them as meaning a certain grade represented by one of the numbers in the Atlanta market, it was competent to show this. Or if the parties differed, and one of them placed a certain meaning upon the contract, and it was known to be thus understood by the other party, at the time, this would be held to be the true meaning. Civil Code, §3674. One party can not lead the other to believe that a descriptive term means a certain thing, as used by him, and that the articles being sold measure up to that description, and then avoid the force of his contract by using a general term in a telegram, which might apply to the specific description already given, or might, standing alone, apply to an article of that description or one of inferior quality. In the first letter of the defendant to the plaintiffs, referring to a desire to sell them cotton, he referred to it as “good cotton,” and said, “My cotton will grade Atlanta 3’s.” In his pleadings he set up that he did not mean his own cotton alone, but cotton which included some of his own and some of other persons represented by him; but there was no evidence that he “represented” any other cotton than his own. It is true that this was a preliminary letter, and that no trade was closed until some days after its writing. Again, on April 25, he wrote to the .plaintiffs to know if they would like to buy 230 bales of “good cotton all in fine condition,” and on the next day telegraphed to them to name their best price for 200 bales of “good cotton.” A ground of the motion for a new trial alleged that the plaintiffs offered to show by the testimony of one of them that the 230 bales of cotton mentioned in the negotiations constituted the only cotton which the defendant had, that the 200 which they bought were a part of the 230 bales, and that the plaintiffs relied upon the representations as to grade set out in the letter of April 17, and that of April 25, in making the trade. The evidence was rejected. In this we think the presiding judge erred. The defendant did not purport to he dealing as a cotton broker, or with regard to cotton which he expected to buy or obtain, but referred to a lot of cotton as “my cotton,” and in the several letters and telegrams never indicated to the plaintiffs that he was selling them any other cotton. In the correspondence he specified the quality of the cotton which he mentioned generally as “good cotton.” After the sending of these letters, when he followed that of April 25 with a telegram asking for an offer, there was ample evidence to authorize an inference that he would expect the plaintiffs to put upon the words “good cotton,” as used in the transaction, a meaning corresponding with the description which he had given in his letters. If so, and they did put that construction upon the general words in the telegram and acted thereon, the plaintiffs should have been allowed to prove it.

The decision in Slater, Myers & Co. v. Demorest Spoke & Handle Co., 94 Ga. 687 (21 S. E. 715), is not in conflict, but rather in accord, with what is here said. It held that a person could not write a letter plainly making a promise to do a certain thing, and, when such promise was sought to be enforced, be allowed to testify that he meant that he would do it on a certain contingency. Armistead v. McGuire, 46 Ga. 232.

2. One ground of the motion for a new trial complained that the defendant was allowed to testify that one of the plaintiffs offered to take the cotton without classification, some two weeks after agents of the plaintiffs went to see the defendant about its delivery. If this stood merely as an independent offer, it would be plainly inadmissible; but it appears that what was said was a part of a conversation between one of the plaintiffs and the defendant. The defendant testified, “A week or such a matter after-wards Mr. Bord came up here, and we had a talk. . . Mr. Ford said, H don’t know whether I bought the cotton based on Atlanta 3’s or not.’ He said he needed the cotton and would take it. I replied, ‘I don’t think you will. I tendered it to you twice. T don’t intend for you to have it.’ Cotton had gone up in the meantime.” It will be seen from this quotation that the evidence to which objection was made was not introduced to show a separate and independent offer, but as a continuing discussion between the parties in regard to the quality of cotton sold, and accompanying an admission that the speaker did not know whether he had bought it on the basis for which the plaintiffs contended. Taken in connection with its context, there was no error in this ruling.'

3, 4. The court charged as follows: “The question is, whether or not Mr. Lawson delivered the cotton at the time and place stated, or whether he endeavored or offered to so deliver it.” There was no evidence that the defendant delivered the cotton contracted for. A mere endeavor to comply with a contract is not alone a defense to an action for its breach. Nor was it accurate to state that the question was whether the defendant “offered to so deliver it” (i. e. “the cotton”). The expression “the cotton” might have been understood by the jury as referring to the cotton which the defendant had, regardless of whether it fulfilled the terms of the contract as to quality or not. It was the duty of the defendant, under his contract, to have, at the time and place of delivery .agreed on, 200 bales of cotton of the quality which he contracted to deliver, and to deliver it to the plaintiffs, unless they refused to receive it. They had agents demanding of the defendant the cotton which he had contracted to deliver. He claimed that he offered to deliver his cotton, and that it met the requirements of the contract, but that plaintiffs’ agent refused to receive it, unless it graded other than as required'by the contract. If the defendant contracted to deliver 200 bales of a certain quality, and tendered cotton of a different quality, this would be no satisfaction of the contract nor furnish him any ground for release therefrom. The errors contained in this charge are repeated in several other charges to a greater or less extent.

It was contended that the defendant did not file a plea of tender, and that the charges touching a tender or offer to deliver the cotton should therefore not have been given. It was alleged by the plaintiffs that the defendant failed and refused to comply with his part of the contract. It was also alleged that plaintiffs were always and at all times willing and ready to perform their part of the contract, and to accept, receive, and pay for the cotton according to the agreement, but that the defendant refused to perform his part of such contract. These allegations were denied bjr the defendant. Evidence was introduced by the respective parties, tending to sustain the plaintiff’s allegations, on the one side, and seeking, on the other, to show that the defendant had not refused to comply with his contract, but had offered to do so, and the plaintiffs’ agent had refused to accept the cotton offered. It was proper to charge the jury on the issue thus made, although there was no formal plea of tender.

5. The court refused a request to charge the following: “If you believe that, prior to the date set for the delivery of the cotton, the defendant notified the plaintiffs that he would not perform the contract, there was a breach of the contract, and the plaintiffs’ right of action accrued at that time,” and also another request of similar import. This law is applicable to what is known as an anticipatory breach of a contract. The decisions in different States are not in harmony on that subject. This court, following the decisions in Hochster v. De la Tour, 3 El. & 331. 678, and Roehm v. Horst, 178 U. S. 1 (30 Sup. Ct. 780, 44 L. ed. 953), has adopted the rule, that, after the renunciation by one party of a continuing contract, consisting of mutual obligations, the other party is at liberty either to immediately treat such renunciation as a breach of the contract and sue for any damages he has sustained by reason thereof, or to treat the contract as still binding, and wait until the time arrives for its performance, in order to give the party who has repudiated the contract an opportunity, to comply with its terms. If he adopts the latter course, and at' the time fixed for performance demands compliance on the part of the other party, his right of action for a breach depends on whether or not such compliance is then made. He can not adopt this method of procedure, allege a breach at the time fixed for performance, and yet rely for recovery on the anticipatory breach, if in fact the other party offered to perform in accordance with the terms of the contract at the time of his demand therefor. Smith v. Georgia Loan, Savings and Banking Co., 113 Ga. 975 (39 S. E. 410); Anderson v. Kirby, 135 Ga. 63, 67 (54 S. E. 197, 114 Am. St. R. 185).

In another charge, as set out in the motion for a new trial, there appears to be an inaccuracy. In the general charge, this does not appear to exist. Except as above indicated, there was nothing in the motion for a new trial requiring a reversal.

Judgment reversed.

All the Justices concur.