Johnson v. Black & Cobb

32 Ga. 396

• Court: Supreme Court of Georgia
• Decided: March 15, 1861
• Status: Published

Opinion

By the Court.

Lyon, J.,

delivering the opinion.

1. The charge of the Court, as stated in the ground of the motion for new trial, that “ if the contract was that the cotton was to be delivered by steamboat, the plaintiff was not bound to deliver the cotton until steamboats could run” was erroneous, because there was no evidence before the Court to warrant that charge.

2. The contract between the parties, as shown by the evidence, was, that the plaintiff in the action sold to the defendant a crop lot of cotton, being the Walker lot of fifty-three bales, at ten and a half cents, to be delivered to defendant, in Rome, within a reasonable time. The cotton at the time was sixty-five or seventy miles from Rome, and had not been seen by defendant. According to the custom of the trade in Rome, it is understood that a crop lot of cotton purchased unseen is to be an average lot, and the larger part good. The evidence discloses that the cotton was not delivered, or in a condition to be, within a reasonable time, more than a month having elapsed from the date of the trade at the time when,the cotton was brought to market, when two weeks would not only have been a reasonable, but a liberal, time. The cotton was not an average lot, but was of a very inferior quality, and in a bad and damaged condition, so much so as to depreciate its sale about two cents per pound below the market price of an average lot. There is no evidence that it was a crop lot; the witness said it was the Walker lot, but he does not say it was a crop lot. In no respect, except as to the number of bales, and its being the “ Walker lot,” did the cotton answer to the contract of the plaintiff in respect to it. The plaintiffs therefore, were not entitled to recover from the defendant for a breach of the contract that they, on their part, had not performed; and the verdict of the jury in that ■was against law and the evidence, and should have been set aside by the Court below, and a new trial ordered.

Let the judgment be reversed.