Dixie Cotton Co. v. Ocean Steamship Co.

92 S.E. 1008, 20 Ga. App. 256, 1917 Ga. App. LEXIS 850

• Court: Court of Appeals of Georgia
• Decided: June 15, 1917
• Docket: 8228
• Status: Published

Opinion

Luke, J.

1. The evidence showed tljat the plaintiff contracted with the defendant to ship 500 bales of cotton from. Savannah to Genoa, Italy, at a given freight rate. .The plaintiff, to carry out its contract with the defendant, contracted with Hamburg-American Line to transport the cotton from New York to Genoa. The defendant failed to carry out its contract with the plaintiff; whereupon the Hamburg-American Line brought suit against the plaintiff for the agreed freight, rate, and,, obtained a judgment, which was- paid by the plaintiff, and the plaintiff instituted this suit for the amount of damages sustained by it resulting from defendant’s breach of its contract. The only conflict in the evidence was as to the time when the defendant notified t'he plaintiff that it would not comply with its contract to ship the cotton. Held, that such conflict in the evidence did not as a matter of law raise the issue that the plaintiff was lacking in ordinary care and diligence to lessen the damages by reason of advanced knowledge of defendant’s intention to breach the contract. Mimms v. Betts Co., 9 Ga. App. 718 (2) (72 S. E. 271).

2. The assignment of error on the judgment overruling the defendant’s demurrer to the plaintiff’s petition, ■ not having been argued in the brief of counsel for the plaintiff in .error, will be treated as abandoned.

3. The evidence demanded the verdict, and- the court did not err in directing the jury to find for the plaintiff.

Judgment affirmed.

Wade, O. J., and George, J., concur.