Cobb Lumber Co. v. Sunny South Grain Co.

Jenkins, P. J.

This was a suit under section 4131 of the Code for loss sustained by the plaintiff vendor in pursuing the remedy fixed by the second clause of that section. It appears that about January 20, 1925, the plaintiff and the defendant entered into an executory contract for the sale of fifteen tons of feed-stuff, which contract provided for immediate shipment of three tons of the commodity, with the right of cancellation on the part of the vendee in ten days if the preliminary shipment proved unsatisfactory; otherwise the remainder of the goods to be shipped February 28, 1925, “or as ordered out.” After the preliminary shipment no shipping instructions for the remainder of the order were given by the defendant, and on February 28, 1925, or within a day or two thereafter, the goods were shipped to the defendant at Oglethorpe, Georgia, from the place of business of the plaintiff at Birmingham, Alabama, the goods reaching Oglethorpe on or before March 3, 1925, since the defendant .telegraphed the plaintiff at 3 o’clock p. m. on that date as follows: “Car feed here we can not use price entirely out of line for the grade of feed shipped make disposition.” No complaint was then made that the goods were not shipped within the time .provided in the'“contract. On March 3, or the next’day, the plaintiff’s representative visited the defendant, who contended that the goods were not of the grade *142 ordered, but offered to take them at a price of $6 per ton less than the contract price. At that time the defendant still made no contention that the goods were not shipped on February 38, 1935. This offer of price reduction was declined by the plaintiff, who then proceeded to sell the goods for the defendant’s account, receiving a price of $13 per ton less than the contract price. Upon suit being brought by the plaintiff for the loss thus sustained, the defendant filed a plea setting up in part that shipment of the goods was not made according to the terms of the contract, and that the goods were unsatisfactory, and that the defendant had never ordered them shipped out. The jury returned a verdict in the plaintiff’s favor, and the defendant filed a motion for a new trial, wherein it is contended that the court erred in charging the jury that shipment by the plaintiff on February 38, 1935, or about that date, would be a compliance with the terms of the contract. This motion for a new trial was overruled, and the defendant excepted.

Judgment affirmed.

Bell, J., concurs. Stephens, J., concurs specially.