Henry Cotton Mills v. Shoenig & Co.

Jenkins, P. J.

(After stating the foregoing facts.)

“Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so.” Civil Code (1910), § 4268 (8). It “is of the essence of a contract when the parties have expressly so treated it, or when it is necessarily so from the nature and circumstances of the contract.” Sneed v. Wiggins, 3 Ga. 94, 99, 100. “As a general rule a time fixed by a contract within which an option may be exercised is to be regarded as of the essence.” “Where the subject-matter of the contract is of speculative or fluctuating value, it is generally held that the parties have intended that time shall be of the essence.” 13 C. J. 688. See also Emery v. Atlanta, 88 Ga. 321 (1), 329 (14 S. E. 556); Watkins v. Hendrix, 137 Ga. 330 (1), 331 (73 S. E. 581). Where an option or contract for the sale of a commodity having a fluctuating value clearly fixes by unambiguous language a time for performance, and where there is no evidence tending to show that the parties did not intend that time should be of the essence of the contract (see Ala. Construction Co. v. Continental Car Co., 131 Ga. 365, 368, 62 S. E. 160), but the contract and the surrounding circumstances manifestly show that the parties intended that time should be of such essence, the court may so rule as a matter of law. See Augusta Factory v. Mente, 132 Ga. 503 (2), 509, 510, 511 (64 S. E. 553); 13 C. J. 183 et seq. In the instant case the option or contract for the sale of cotton,—a commodity having a fluctuating value,—in which it was provided that “this agreement is good for 60 days,” time was of the essence of the contract, and the rights of the parties to act thereunder, in the absence of a novation or of an express or implied extension of such time, terminated at the end of the period stated. Thus, if the instant suit by the owners for the- recovery of the value of cotton stored with the defendant were construed as one upon the contract between the parties, a verdict for the defendant would have been demanded.

2. “When a transaction partakes of the nature both of a tort and a contract, the party complaining may waive the one and rely upon the other.” Civil Code (1910), § 4401; Stokes v. Wright, 20 Ga. App. 325 (93 S. E. 21). Where a petition is ambiguous in failing to malee clear whether the cause of action and remedy relied upon is one sounding in contract or in tort, the courts have applied various rules of construction, according to the jurisdiction sought to be invoked and the facts involved, the general rule being that, “where a petition can be construed either as a suit in contract or as an action for a breach of duty arising out of the contract, the latter construction will be adopted,” and the petition “will be construed as claiming damages for the tort.” Central of Ga. Ry. Co. v. Chicago Portrait Co., 121 Ga. 11 (1), 12, 13 (48 S. E. 727); So. Bell Tel. Co. v. Earle, 118 Ga. 506 (5), 511 (45 S. E. 272). See also Owens v. Nichols, 139 Ga. 475, 476 (77 S. E. 635); Buchanan v. McClain, 110 Ga. 477 (35 S. E. 665); Reynolds v. Padgett, 94 Ga. 341 (21 S. E. 570); City & Suburban Ry. Co. v. Brauss, 70 Ga. 368; Lamb v. McHan, 17 Ga. App. 5, 6 (86 S. E. 252); Fine v. So. Express Co., 10 Ga. App. 161 (13 S. E. 35); Howard v. Cen. R. Co., 9 Ga. App. 617 (71 S. E. 1017); Payton v. Gulf Line R. Co., 4 Ga. App. 762 (62 S. E. 469). In the absence of a special demurrer, however, where the facts alleged are appropriate to support either of two forms of action, the courts will “presume that [the pleader’s] purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action.” Stoddard v. Campbell, 27 Ga. App. 363 (3) (108 S. E. 311), and citations.

3. There being no evidence as to an express or implied extension of the time fixed by the contract for the purchase of the cotton, the plaintiffs not being entitled to maintain their action as upon the contract for the price fixed thereby, and their petition not seeking to recover as upon a quantum valebat or implied promise to pay, the action could be sustained only as one in tort, based upon the alleged conversion of the cotton by the defendant. The proper measure of damages, therefore, was not the price of the cotton provided in the expired option. Waring v. Gaskill, 95 Ga. 731 (2) (22 S. E. 659); Campbell v. Redwine, 22 Ga. App. 455 (3) (96 S. E. 347). The proof in the instant case wholly failing to show what the value of the cotton was at the time of the alleged conversion, or between that time and the date of trial, the verdict directed for the plaintiff, based solely upon the price stated in the expired option, was contrary to law, as being without evidence to support it. Whether on a retrial the plaintiff would be entitled to claim, under the pleadings as they may be amended and facts which may then develop, the highest proved value between the date of the alleged conversion and the trial is a question that the record does not now present for determination. But see, in this connection, Bennett v. Tucker, 32 Ga. App. 288 (123 S. E. 165), and citations. See also Waring v. Gaskill, supra; Campbell v. Redwine, supra.

4. Under the preceding rulings it was error to exclude evidence offered for the defendant as to the actual market value of the cotton on the date when it was sold or used by the defendant, which amount was less than that sought to be recovered by the plaintiffs.

5. The defendant not being entitled to claim storage charges—a claim ex contractu—for keeping the plaintiffs’ cotton in its warehouse during the time from the expiration of the contract to the alleged conversion, as against the plaintiffs’ claim in tort for such conversion, the coiirt did not err in excluding, as irrelevant, proof as to the reasonable value of such storage. See Harden v. Lang, 110 Ga. 392 (2), 400; Johnson v. Reeves, 112 Ga. 690, 691; Ingram v. Jordan, 55 Ga. 356 (2).

Judgment reversed.

Stephens and Bell, JJ., concur.