Clark v. Minor

73 Ga. 590

Opinion

Blandford, Justice.

Minor purchased certain lands from Clark, and gave his notes therefor, whereby he agreed to pay so many pounds of cotton in three installments, one to become due 1st of November, 1878,1st November, 1879 and 1st November, 1880. After these installments became due, Minor delivered to Clark part of the cotton, and being sued for the balance of the cotton due on the notes, he insisted that he was entitled to a credit for the value of the cotton when delivered; that, as the cotton had increased in value when delivered, he was entitled to a credit for the difference in value at the time when he should have delivered it under the contract and when it was actually delivered. The court below seems to have favored this view of the defendant.

When the cotton was delivered by Minor, he was only entitled to a credit for so much cotton, this being a note payable in specifics; the contract was to pay in cotton, and, although it was past due, Clark had the right to waive the violation of the contract by Minor, and receive the cotton; and when the cotton was so received, Clark had the right to bring his action and to recover from Minor the value of the cotton not delivered at the time and place when it should have been delivered, with interest thereon. This, we think, is the proper rule by which to measure the rights of these parties.

Judgment reversed,