Moss & Co. v. Fortson 99 Ga. 496

MOSS & COMPANY v. FORTSON.

The declaration, even if treated as a suit for a breach of contract, set forth a general cause of action, and was therefore sufficient to support a verdict in the plaintiff’s favor. If it insufficiently stated the elements of the damages alleged, its defects in this respect could have been reached by a special demurrer, and would have been curable by amendment. This being so, and the only error assigned being the overruling of a motion in arrest of judgment, no cause for a reversal is shown.

August 18, 1896.

Action for damages. Before Judge Cobb. Oity court of Athens. September term, 1895.

Thomas E. Fortson brought his action against R. L. Moss & Co., to which defendants demurred on the ground that the declaration attempted to unite in one cause of action a tort and a contract. Thereupon plaintiff amended his petition by striking the 9 th paragraph which he alleged *497was the only portion of the same which sought to recover for a breach of contract. The plaintiff obtained a verdict, and defendants moved in arrest of judgment, on the grounds, (1) that the declaration does not set out a cause of action, and (2) that the declaration discloses that the suit, while being nominated one for damage, is really for a breach of contract, without any allegation of special damage flowing therefrom. This motion was overruled, and defendants excepted. The petition alleges, that defendants have injured and damaged plaintiff’ in the sum of $5,000, for that on September 12, 1893, defendants, desiring an agent at "Washington for the purpose of buying cotton for them, proposed to petitioner in writing: “If you will buy for us exclusively during the continuance of this arrangement, which can be cancelled upon two days notice by either party, we will wire you our limits each morning, until changed or cancelled, allowing you a commission of twenty-five cents per bale on all cottons reported and shipped on these limits. "We will quote you on a basis of Liverpool good middling, and will use Shapperson’s code of 1881. 'We will have you to ship all cotton to us at Athens by local freight.” Plaintiff accepted this contract and requested defendants to notify the bank at Washington that they would pay all sight drafts drawn upon them by him with bill of lading attached, which they did in writing on September 16, 1893. At that time, and for many years before, plaintiff had been engaged in the business of cotton buying, and had built up a business of the value of over $1,000 a year. Ilis means were very limited, and he was enabled to carry on his business solely by reason of the confidence reposed in him by the banks and warehouses in Washington; which facts were well known to defendants. As soon as said negotiations were completed, plaintiff entered upon his duties as agent of defendants, and commenced to buy and ship cotton for them at Washington according to the terms of the contract, paying therefor by *498sight drafts upon defendants with bill of lading attached. The business was earned on 'as agreed until October 27, 1893, when defendants, without notice to plaintiff and in violation of the contract, refused to pay two drafts drawn by him on -them with bill of lading attached, for cotton bought by him for them 'at Washington and shipped as per contract, one being for $1,081 in favor of the Dublin Warehouse Oo., and the other for $605 in favor of Boyce Ficklin, cashier, both of which were negotiated at the bank in Washington. Both were protested for non-payment, and defendants wilfully refused to recognize or pay them, though properly demanded so to do, and though they were drawn by plaintiff under the terms of -the contract. Said conduct was a fraud on plaintiff, and a wilful violation of the contract; and the effect of it was to destroy and utterly ruin plaintiff’s business as a cotton buyer, and tended to-mortify and disgrace him as a business man, and to destroy the confidence heretofore and at said time existing in him among the banks and warehouses of Washington; and all these things were well knov^n to defendants at said time.. On account of said fraudulent and illegal conduct on the part of defendants, plaintiff has been forced to abandon his business of buying cotton and to engage in other business, which is far less remunerative. The 9th paragraph of the-petition was in these words: “And your petitioner shows, that under his contract with defendants, he bought and shipped to them at Athens, Ga., before the breach of contract as aforesaid, 395 bales of cotton for the purchase of which, at 25 cents per bale, as per contract, he was entitled to $98.75, which said sum said defendants fail and refuse to pay, though often requested so to do.”

John J. Stricldcmd, for plaintiffs in error.

Samuel R. Rardeman and 'Lumplom & Bwrvett, contra.