DocketNumber: 4782
Citation Numbers: 12 Ga. App. 794
Judges: Pottle
Filed Date: 6/10/1913
Status: Precedential
Modified Date: 1/12/2023
The petition in the present ease contained three counts, but, as the jury found for the plaintiffs on the second count, only this count is material in the consideration of the case. The case made by the petition is substantially as follows: The plaintiffs were cotton factors and engaged in the business of selling cotton on commission in the city of Savannah. The defendant was engaged in the business of selling cotton, and resided in Dodge county. On August 25, 1909, the defendant requested the plaintiffs to sell for him fifty bales of cotton for October delivery at 12% cents per pound. Acting upon this request, the plaintiffs sold to MeFadden & Brother for the defendant, on August 25, 1909, 50 bales of cotton for 12% cents per pound, to be delivered on or before October 26, 1909, subject to-the rules of the Savannah Cotton Exchange, basis, good middling. In order -to make the sale it was necessary for the plaintiffs to guarantee the delivery of the cotton in accordance with the terms of the contract; and this they did. Immediately after making the sale, the plaintiffs notified the defendant of the sale and the terms thereof, and requested shipment of the cotton. The defendant refused to comply with the contract, and on October 26, 1909, the plaintiffs delivered to MeFadden & Brother 50 bales of cotton, the market price of which, on the day of delivery, was 14 cents per pound. The defendant thereupon became indebted to the plaintiffs in the sum of $441.74, being the difference between the contract price and the market value of the cotton; and also in the sum of fifty dollars additional, as commissions for making the sale. The defendant answered, denying that he was indebted to the plaintiffs in any sum, and denying that he authorized the execution of the contract with MeFadden & Brother.
From the evidence it appears that on August 25, 1909, the defendant wired the plaintiffs as follows: “Sell me fifty bales twelve quarter October delivery.” On the same day the plaintiffs wired the
It is insisted, in the motion for a new trial, that the defendant should have been allowed to prove that the plaintiffs considered the contract executory, and did not rely upon the telegrams as evidencing a complete contract. But the law fixes the status of the contract. It was not executory. The defendant directed the plaintiffs, as his factors and agents, to sell for him 50 bales of cotton, for October delivery, at a certain price. The plaintiffs accepted this commission and immediately made the sale, obligating themselves to make delivery for and in behalf of the defendant, in accordance with the contract. So far as the defendant and the plaintiffs are concerned, the contract was completely executed, and nothing remained to be done but to deliver-tlie cotton in accordance therewith. The defendant became bound to make this delivery, and the plaintiffs, under their contract with McFadden & Brother, became obligated to see that delivery was made by the defendant. The failure of the defendant to execute the subsequent contract is wholly immaterial. The suit' was not brought for damages for his failure to execute this contract, but the action was predicated upon his failure to deliver the cotton in accordance with his original agreement and the loss which the plaintiffs had sustained by reason of being compelled to purchase cotton in the market and deliver it to McFadden & Brother in accordance with the contract. The plaintiffs were entitled to .their commission of $50 for making the sale, this amount being shown by' the evidence and being the customary commission charged by cotton factors in Savannah. The rules .and by-laws of the Savannah Cotton Exchange were immaterial, and their introduction in evidence was not hurtful to the defendant. The ground of the motion for a new trial in which complaint is made that counsel for the plaintiffs were permitted to interrogate the defendant in reference to certain matters to which he had testified on a.former trial, because counsel did not read to