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Wheeler vs. Walker.

Reported in the decision.

HAWKINS & HAWKINS, for plaintiff in error.

S. C. ELAM; Fort & McCLESKEY, by B. P. Hollis, for defendant.

WARNER, Chief Justice.

This was an application for a writ of mandamus requiring the sheriff of Sumter county to accept an affidavit of illegality to an execution which had been levied on the petitioner's property which had been tendered to the sheriff, and which he had refused to accept, (a copy of which affidavit of illegality was attached to the petition, or that the sheriff appear at the next term of Sumter superior court and show cause why be should not do so, and in the meantime that he desist and forbear to sell the property so levied on until the further order of the court. The presiding judge of said court, at chambers, granted the following order :

" It is ordered that the respondent accept the affidavit of illegality, or show cause at the next term of Sumter superior court, why the mandamus should not be made absolute, and until the hearing, he is ordered to suspend the sale of the property levied on, on the fi. fa, mentioned in the affidavit of illegality.”

The bill of exceptions recites that by consent of counsel on the 311 day of July, 1875, at chambers, the application for the mandamus nisi, as prayed for, was heard before the presiding judge, all notice being waived, when a demurrer to the mandamus, (meaning, we suppose, to the application for mandamus,) and objections to granting the injunction was heard, and after hearing argument, the judge granted the before recited order, which is called in the bill of exceptions an injunction ; whereupon the sheriff excepted.

1. When the case was called for argument here, a motion was made to dismiss the writ of error as having been prematurely brought, as there had been no judgment rendered by the court

Wheeler vs. Walker.

causes.

denied, 76/725. Obiter dicta &

below on the hearing of the mandamus nisi at the court to which it was made returnable, and that the case was not embraced within the provisions of the act of 1870, providing for the bringing up to this court injunctions prayed for in equity

By the 4250th section of the Code, it is declared that no cause shall be carried to the supreme court upon any bill of exceptions so long as the same is pending in the court below, unless the decision or judgment complained of, if it hail been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, but the party at any stage of the cause may file his exceptions on the record, etc. A writ of mandamus is a common law writ, and under the constitution of this state the superior courts alone have jurisdiction to issue it. The judges of the superior court may grant a mandamus nisi at any time on proper showing made, but the return must be made in term time: Codle, section 3201, 247. The judge, at chambers, had no authority unde the law to hear and determine a demurrer to an application for a writ of mandamus nisi. The juilges of the superior courts, in vacation, have only the power and authority to hear and determine demurrers to bills in equity, under the provisions of the act of 1869. The granting the mandamus nisi, to be heard and determined at the next term of the superior court, was no final disposition of the cause, and the judge might well have overruled the defendant's demurrer to the application, on the ground that he had no power or authority to hear and decide it under the law, at chambers. A judge of the superior court cannot exercise any power out of term time except the authority is expressly granted : Code, section 219.

2. It is assumed in the bill of exceptions and was urgeil on the argument that the order of the judge, as it appears in the record, granting the mandamus nisi, was an injunction, and therefore could be brought to this court on writ of error as an injunction granted in an equity cause, under the provisions of the act of 1870. The reply is that the application for the writ of mandamus was a common law proceeding, and

Camp vs. Hamlin & Barnum.

no injunction was prayed for and no injunction was granted by the judge. The prayer of the petitioner was that the sheriff might desist and forbear to sell the property levied on until the further order of the court. The legal effect of the prayer of the petitioner was for a supersedeas until the mandamus nisi could be heard and determined, and such is the legal effect of the oriler of the judge. The order of the judge merely suspends the sale, and is nothing more than a supersedeas of the sale of the property by the sheriff until the mandamus nisi granted by him could be heard and decided by the superic court as provided by law. The judge had the power and authority, under the law, to grant the supersedeas, as he did, if, in his judgment, the ends of justice required it: Code, section 247.

This being a proceeding on the common law side of the court, and no judgment having been rendered in the case by the court below which this court can review, the writ of error is dismissed as having been prematurely brought to this court.

JAMES CAMP, plaintiff in error, vs. HAMLIN & BARNUM, de- 55 259

fendants in error.

57 426

1. The purchaser of goods at a stipulated price, who refuses to accept and

pay for them according to his written contract, is liable to the seller, in damages for the difference between such price and the market value of the goods at the time and place fixed by the contract for delivery; and the seller, after a tender of the goods and a refusal by the purchaser to receive them, may, if they be perishable, expensive to keep, or likely to go out of season, sell them within a reasonable time, at auction, in the market of delivery, and the amount they bring will be evidence in ascertaining the

damages. 2. But where it appears by a part of the evidence in the case that the actual

value was equal to the price, the seller, in order to recover the difference between the price and a far less amount realized at auction, ought to show when and where the auction took place, what notice of it was given, how the sale was conducted, who were the purchasers of the various lots, and at what prices; or if any of these particulars are omitted in his showing, he ought to explain why the omission cannot be supplied. In respect to

Camp vs. Hamlin & Barnum.

the conduct and proceeds of the auction, he is in the position of a party accounting, and ought to account fully, and with reasonable particularity, by the production of satisfactory evidence on the trial.

Sales. Damages. Before 2. T. ODOM, Esq., Judge pro hac vice. Dougherty Superior Court. April Term, 1875.

Hamlin & Barnum brought complaint against James Camp on the following contract:

“DOUGHERTY COUNTY, Albany, April 29, 1873. “I have this day bought of Hamlin & Barnum, Cumberland Nurseries, Edgefield junction, Tennessee, the following bill of trees, plants, vines, etc., to be delivered at Albany on the 19th of December, 1873 :

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“Upon the day of delivery of said trees, plants, vines, etc., I will pay to the order of Hamlin & Barnum the sum of $288 00 in cash, or proportionally thereto, according to the number and price of each kind sent. No countermands will be accepted. If not delivered as above specified, notice will be given of the time of delivery. (Signed)

"JAMES CAMP." The declaration alleged that the plaintiffs tendered said trees, etc., in accordance with the terms of their contract, but the defendant refused to accept them, to their damage $500 00; that the plaintiffs' agent, J. Georgi, was at the city of Albany on December 19th, 1873, for the purpose of delivering saii trees, etc., and of collecting the amount due for the same, and on account of the defendant's failing to comply with his contract, he was compelled to remain in said city forty-one days, at an expense of $2 00 per day; that in consequence of the defendant's conduct said trees, etc., were nearly a total loss to the plaintiffs, and were sold at auction for the small sum of 829 00.

The defendant pleaded the general issue.

Upon the trial of the issue thus formed, the plaintiffs introduced the contract sued on, and the deposition of Julius Georgi, to the following effect :

Camp vs. Hamlin & Barnum.

He sold the trees to the defendant, as the agent of the plaintiffs ; he delivered the trees at the depot in Albany, on December 19th, 1873, in accordance with the contract; they were worth the price the defendant agreed to pay for them; the latter declined to take them from the depot, and witness went and "heeled” the roots and had them sold at auction ; they brought $29 00; witness was compelled to remain in Albany forty days on this business, at an expense of $200 per day; notified the defendant that the trees were at the depot in Albany on the day they were to be there.

The defendant introduced no testimony. The jury found for the plaintiffs $186 38. The defendant moved for a new trial because the verdict was contrary to the law and the evidence and to the following charge of the court:

"If the contract was that the plaintiffs were to deliver a certain number of fruit trees in Albany, Georgia, for defendant, and the plaintiffs did ship them to the depot in Albany, Georgia, and notify defendant of their arrival, that was a complete delivery on the part of the plaintiffs, and, under the law, they were then the property of the defendant, and the plaintiffs had no right to go and retake them; and if they did, then the defendant is entitled to a deduction on their claim to the amount of the trees so taken, which value was their market value at the time they were so taken.”

The motion was overruled, and the defendant excepted.

D. H. Pope, for plaintiff in error.

STROZER & SMITH, for defendants.

BLECKLEY, Judge.

Fruit trees were sold by written contract, at a stipulated price, to be delivered at a certain place on a certain (lay, the price to be paid on delivery. They were tendered to the

purchaser at the time and place, according to contract, and he declined to receive them. Thereupon the seller lingered forty days, and during that period sold them at auction. The tes

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