Mountain City Mill Co. v. Cobb

53 S.E. 458, 124 Ga. 937, 1906 Ga. LEXIS 665

• Court: Supreme Court of Georgia
• Decided: February 19, 1906
• Status: Published

Opinion

EvaNS, J.

This was an action on an account by the Mountain City Mill Company against W. S. Cobb. The items set out in the-bill of particulars were for certain flour, bran, and grits. The defendant admitted that he bought the goods sued for, and at the prices named, but denied any indebtedness, for the reason that on or about the 15th day of January, 1902, the plaintiff sold to the defendant certain brands of flour, to wit: “White Satin” and “Diamond Patent,” and the defendant was to have the exclusive right to sell flour of these particular brands in the town of Canton, Ga.; that after the purchase of this exclusive right of sale, the plaintiff sold flour, under the same brands to a rival merchant in the town of Canton, and withdrew the sale of the flour from the defendant, who had built up a large trade upon this particular flour, and had been to considerable expense in placing it before his customers as a fine brand; and that by the terms of the contract the defendant was to have the exclusive sale of the flour under these brands, so long as he “pushed” the same, and that in pursuance of this contract, from and after the date of the first purchase of flour, he spent large sums of money in “pushing” the sale of these brands; that the trade thus built up was of the value of one thousand dollars, and that by the withdrawal of the sale of these brands and placing it with his rival in the business, he had been endamaged in the sum of $1,000. The plaintiff demurred to the plea, because it set forth no sufficient grounds of recoupment; because the damage claimed was not set out with clearness and definiteness; because the defendant failed to set forth his profits on the contract, and because the damages claimed were too remote to be the basis of any recovery. The court overruled the plaintiff’s- demurrer to the plea, and the plaintiff excepted pendente lite. The defendant submitted certain evidence in support of his plea,, and recovered a verdict against the plaintiff in a certain sum. The plaintiff moved for a new trial, and this writ of error is sued out.. because of the refusal of the court to grant this motion. Error is also assigned on the exceptions pendente lite.

1. The contract set up in the defendant’s plea was unilateral.. By the terms of this alleged contract, the defendant was not bound to order any flour from the plaintiff. While it is alleged that the: plaintiff agreed to give the defendant the exclusive right to sell flour of certain brands, it was entirely voluntary on the part of the defendant whether he should buy any flour at all. In all essential respects, this contract was very similar to that set out in the plea of recoupment in the case of Huggins v. Southeastern Cement Co., 121 Ca. 311. In that case the contract was in writing, and Huggins agreed to “push” the sale of the cement manufactured by the plaintiff, exclusively, and not to purchase any other brand while the contract was in effect. The Cement Company, in. turn, agreed to sell its cement at the defendant’s place of residence exclusively to Huggins. In discussing this contract, the court, said: “While it contained an agreement on the part of the Cement Company to furnish cement, there was nothing- in the contract which amounted to an obligation on the part of Huggins to- - purchase cement m any stated or otherwise definite quantity.” For this reason it was held that the contract was clearly unilateral.

2. Even if the contract had been mutual and capable of enforcement, the damages claimed were too remote and speculative. Beck Duplicator Co. v. Fulghum, 118 Ga. 836. In any view of the case,, the plea of recoupment should have been stricken on demurrer.

Judgment reversed.

All the Justices concur.