Rome Cooperage Co. v. Bettis Co. ( 1923 )

Hill, J.

(After stating the foregoing facts.) Exceptions filed both to the overruling of the demurrer to the petition and to the charge of the court set out in the amended motion for .a new trial raise the single question for determination by this court as to the rule for the measure of damages under the facts of this case. The general rule is that the measure of damages recoverable of a seller for failure to deliver goods sold is the difference between the contract price and the market price at the time and place for delivery as fixed by the contract. Civil Code (1910), § 4131; Bloom v. Americus Grocery Co., 116 Ga. 784 (2), 787 (43 S. E. 54); Erwin v. Harris, 87 Ga. 334 (5) (13 S. E. 513); Huggins v. Southeastern Lime &c. Co., 121 Ga. 311 (5) (48 S. E. 933); Hardwood Lumber Co. v. Adam, 134 Ga. 821 (68 S. E. 725, 32 L. R. A. (N. S.) 192); Ford v. Lawson, 133 Ga. 237 (6) (65 S. E. 444); Bainbridge Oil Co. v. Crawford Oil Co., 138 Ga. 741, 745 (76 S. E. 41); Sizer v. Melton, 129 Ga. 143 (7-10), 151 (58 S. E. 1055).

It is contended that the correspondence between the plaintiff and the defendant with reference to the delay in shipment carried forward the date of delivery as fixed by the contract to a future date, and that the plaintiff’s measure of damages would be the difference between the contract price and the market price at the date on which the defendant repudiated the contract, on the substituted extension of time for delivery. The court instructed the jury as follows: “But I instruct you further, if you find, at the time specified in the contract for the delivery of these goods, that, by certain correspondence between the plaintiff and defendant, the time of the delivery was extended from time to time, and that this extension amounted to a mutual agreement between the plaintiff and the defendant to extend the time from time to time in order to aid the defendant in making delivery as contracted, if they mutually agreed to it, then I charge'you that the breach would occur whenever the defendant in this case, if it ever did from the evidence, finally breached the contract and refused to deliver the goods ■ or comply therewith; and you will look in this cáse and see whether there was an extension of time by reason of correspondence such as I have explained to you, and when the breach occurred, if it did occur; and if you find a breach did occur later on, then I charge you the measure of damages in that event would be the difference in the contract price and the market price at the time and place of delivery at the time of the actual breach of the contract, whatever time you may find that to be. In that connection I charge you where a party contracts to deliver goods at a particular time and place, and no payment has been made, the true measure of damages is the difference between the contract price and that of like goods at the time and place where they should have been delivered.” The exceptions to the charge were:

“ (a) That said charge is an improper and incorrect basis for determining the measure of damages, the true measure of damages under the law being the difference in the contract price and the market price at the time and place fixed in the contract sued on. (&) That said charge is not adjusted to the pleadings or evidence in the case, there being neither pleading nor evidence as to any mutual agreement as to an extension of time in making delivery under the contract, and certainly none as to an extension of time to any definite date; that there is neither pleading nor evidence showing that any extension was ever mutually agreed upon, but, on the contrary, that the plaintiff in this case was continuously insisting upon a delivery in accordance with the contract, (c) That a mutual agreement as to an extension of time for delivery, unless based upon a valid consideration, would not have the effect of changing the measure of damages from that fixed by law, to wit, the difference between the contract price and the market price at the time and place fixed for delivery in the contract sued on. (d) That said charge instructed the jury that the plaintiff was entitled to recover the difference between the contract price and the market price at the time of the actual breach of the contract and the refusal to deliver the goods, irrespective of the time fixed in the contract, or any time which may have been fixed by mutual agreement. In other words, that the damages were to be calculated on the basis of the date the jury might find that the defendant refused to ship the goods; all of which was an illegal and improper basis for the calculation of the damages, and placed upon the defendant the burden of showing a definite and affirmative refusal to make delivery; that said charge improperly and illegally left to the jury to determine when the defendant refused to make delivery, and authorized thorn to find a verdict for the plaintiff for the difference between the contract price and the market price at the time of such refusal, without reference to the date fixed for delivery in the contract, or even any other date which had been mutually agreed upon between the parties, all of which was erroneous and contrary to the provisions of law.”

It is contended by the plaintiff that while these contracts, which are set out in the evidence, specified a certain date for the delivery of'the “headings,” by mutual consent of both parties, as shown by the correspondence set out in the record, the time of delivery was extended from time to time, no definite date ever having been agreed upon; that finally the defendant actually breached its contract by selling its plant and refusing to deliver the goods; and that the measure of damages is thus fixed as of this date. The contention of the defendant is that the measure of damages was fixed by the date stated in the original contract for delivery of the goods, and was not affected by any subsequent agreement between the parties. It appears from the record that while the original contract called for delivery of the goods at a specified time, the Eome Cooperage Co., on several occasions, wrote to the H. Bettis Co., before and after the date for the performance of the original contract and the delivery of the goods specified in the contract, stating that they would comply with the contract, and giving various reasons as an excuse for their delay in delivering the goods, among others, that they were unable, on account of scarcity of labor and wood and bad weather, to make delivery as specified in the contract, and requesting that additional time be granted them for performance of the contract. There is evidence tending to show that the plaintiff assented to this extension of time until it learned that the defendant had sold and disposed of its plant, thus rendering it impossible to comply with its contract. The plaintiff then went into the open market and purchased goods in lieu of those specified in the original contract, and brought the present suit to recover the difference between the contract price and the market price at the date of this purchase. There is evidence in the record tending to show that both the plaintiff and the defendant agreed upon an extension of the time stated in the contract for the delivery of the goods specified therein; and therefore the charge of the court as given was authorized by the evidence, and it became a question of fact for the jury to determine, under the charge, whether or not there hail been an extension of the time in writing by the parties to the original contract. Whether the jury based their verdict upon this theory of the case, or upon the evidence as applied to the general rule as stated by the court, it is not necessary to determine. What we are holding is that the charge complained of, under the facts of this case, was not error for any reason assigned. There was no exception to the charge on the ground that the court should have construed the writing with reference to an extension of the time of delivery, instead of leaving it to the jury to say whether there was an extension of time. It is true that in the subsequent agreement as to an extension of time no definite date was fixed on which the contract was to be performed; but the law will imply that the delivery should be made within a reasonable time, and the measure of damages would be fixed at such date when the defendant sold its plant, thus rendering itself unable to perform the contract..

Judgment affirmed.

All the Justices concur.