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Van Winkle & Company vs. Wilkins et al.

less value and less quantity than it should have been; that the seed thus damaged by delay was, to the extent of the damage, to wit, $4,200, lost to defendants solely by plaintiffs' neglect and default; and the damage sustained by defendants by reason of the delay and the failure of the mill to be of the capacity guaranteed in producing oil, etc. oil, etc. to the extent of $

were

such damages as entered into the contemplation of the parties when the contract was made, and actually, naturally, etc. flowed from its breach. Wherefore defendants said they had been damaged $10,065, which they prayed might be deducted by way of recoupment, and that they might have judgment against the plaintiffs for the excess.

For further plea, the defendants said the plaintiff's were indebted to them in the sum of $433.64 on an account, of which they attached a bill of particulars.

The testimony introduced was conflicting on nearly every material feature of the case. The jury, under the charge of the court, returned a verdict for the plaintiff' for $4,622.81, with interest. The plaintiff's moved for a new trial on the following among other grounds:

(1) Because the court refused to allow Van Winkle to testify how many oil-mills of the same character as the one in question had been built by his firm.

(2) Because the court permitted Van Winkle to testify, on cross-examination, as to events occurring before the signing of the contract, particularly how the date named in the contract was fixed at October 25 instead of October 15.

(3) Because the court ruled out certain interrogatories which would prove that the witnesses who answered them were owners and managers of oil-mills, located at Hogansville and other points in Georgia, the exact char. acter and capacity of the mills in question, each of which

Van Winkle & Company vs. Wilkins et al.

was erected by plaintiffs, and was a first-class manufacture; the object being to establish what was first-class oil-mill machinery, and the meaning of such term as applied to the construction and erection of such machinery by Van Winkle & Co.

(4) Because Wilkins was allowed to answer the following question: State the facts of this case, what loss you sustained on account of the delay, what the delay was, how long it lasted, what damage it caused, whether or not the machinery was according to contract, in what respect it varied, and the loss from that source;-the ground of objection being that the witness was a party defendant and an attorney, and would be permitted to state his whole case without proper indication in advance directing the attention of counsel on the other side as to whether what he would say would be relevant or not, or positive or hearsay; plaintiffs' counsel insisting that the question should be divided, so that any question propounded might be the subject of exception.

(5) Because the court permitted the following questions to be asked Wilkins: I want to ask you this question: If at the time of making this contract, the purpose for which the mill was desired was or was not discussed between you and Mr. Van Winkle as to the requirements as to cotton-seed for the manufacture of the products of the mill,-was or was it not discussed between the parties, both parties; whether or not subsequently in the prosecution of the contract it was discussed.

(6) Because the witness Wilkins was allowed to testify in response to this question: In the progress of the execution of this contract, state whether there was or was not any conversation where Mr. Van Winkle advised you to buy seed; the ground of objection being that it was not within the scope of the authority of Van Winkle, as

Van Winkle & Company vs. Wilkins et al.

agent of his partner, to bind the firm by any such state

ment.

(7) Because the court overruled the objection to the following question to, and refused to exclude the answer of, W. E. Jones: You have heard the testimony of Mr. Van Winkle and Major Wilkins; now state what occurred in the interview resulting in that contract with reference to the time, giving additional time. The witness answered: We were talking about making the contract; we asked Mr. Van Winkle what time he would have the mill ready; I think the first thing he said was, the first of October; Mr. Van Winkle said he would not be bound by any time; Major Wilkins said, then consider trade off.

(8) Because the court refused to allow Van Winkle to testify in rebuttal as to D. A. Tompkins, the agent of an opposition oil-mill company, in answer to the following questions: Is it not to the interest of the corporation, and has it not been their purpose, to break down smaller manufactories?

(9) Because the court refused to allow the introduction, in rebuttal, of the testimony of the witnesses set forth in the 3d ground

(10) Because the verdict is vague and uncertain, in that it bears interest without fixing any date from which it should run; the suit being on a contract payable in instalments, one of which bears interest six months anterior to the other.

(11) Because the verdict is contrary to evidence and good conscience, in that the finding was for a sum less than either instalment sued for, and necessarily allowed the whole claim for loss on cotton-seed as having occurred solely from the delay in starting the machinery, and no deduction being made for the care, trouble, risk,

Van Winkle & Company vs. Wilkins et al.

responsibility and expense of manufacture, and for prices. realized from the sale of the product.

The motion was overruled, and the plaintiffs excepted.

FRANK H. MILLER and P. P. JOHNSTON. for plaintiffs.

FOSTER & LAMAR, J. J. JONES and R. O. LOVETT, for defendants.

BLECKLEY, Chief Justice.

1. In defence to an action upon a contract to manu. facture machinery for a cotton-seed oil-mill, a deduction from the contract price was claimed on two grounds: (1) that the machinery was not first-class, the contract being to supply machinery of that class; and (2) that a delay of some days occurred in completing the work, in consequence of which loss occurred from the decay or deterioration of cotton-seed that had been purchased for use in the mill. The court, in ruling upon the pleas and in charging the jury, recognized both elements of defence, and we think, correctly.

2. The principle, as to measure of damages, laid down with reference to deduction from the agreed price on account of defective machinery was the difference between the contract price and the actual value of the machinery supplied; and in reference to the cotton-seed, the measure of damages recognized in the charge of the court was the difference between the value of the seed before they were damaged by delay and their value in their damaged condition. We approve these measure

ments.

3. It was contended that the damage from the spoiled cotton-seed was too remote and uncertain: but we think not, as the court restricted the jury to the damage contemplated by the parties in the contract. If the damage

Van Winkle & Company vs. Wilkins et al.

was not such as was within the contemplation of the parties, it was not matter for recoupment, but if it was within the contemplation of the parties at the time the contract was made, it was the subject-matter of recoupment.

4. Parol evidence, we think, was admissible to show whether such damage was in the contemplation of the parties. The contract named a time for the machinery to be ready to be put up, and the parol evidence simply went to illustrate the question of whether that time was of the essence of the contract, and whether the purchase of cotton-seed in advance, and therefore the damage which resulted from supplying a stock of seed and keeping it on hand with a view to having it ready to run the machinery when the time arrived, was within the contemplation of the parties. There was no error in the controlling principles applied by the court in the trial of the case.

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5. Van Winkle represented the firm of which he was a member in agreeing to the terms and stipulations of the contract. That he was competent as a partner to contract in behalf of the firm touching its business is not controverted, but it is said that he could not, without some special delegation of power to him by his copartners, render time of the essence of any contract, and bind the firm to abide the legal consequences of so doing. We see no virtue in this position except that of bold and courageous novelty.

6. When a manufacturer contracts to supply a firstclass article, there is no reason for understanding him as stipulating with reference to his own productions, and them only, as a criterion. Why should he be allowed to make the standard and the article both, unless for so doing he provides expressly in his contract? A firstclass cotton-seed oil-mill, and a first-class Van Winkle

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