Electric Railway Co. v. Tennessee Coal, Iron & Railway Co. , 98 Ga. 189 ( 1896 )

Atkinson, Justice.

The plaintiff sued the defendant for a balance due upon the purchase price of certain coal alleg’ed to have been delivered by the former to the latter. To this action the defendant pleaded, admitting the correctness of the plaintiff’s demand, and its liability in the first instance for the sum claimed. Further, it pleaded in substance, by way of recoupment, that it was engaged in running an electric railway; that in the generation of steam it was necessary for it to-have considerable quantities of coal; that under the contract previously made, and under which the coal sued for was actually delivered, it had been purchasing coal from the plaintiff to be used in the conduct of its business; that having learned that a labor strike was soon to occur at the mines of the plaintiff, it made an agreement with the plaintiff, by the terms of which it undertook to deliver certain other coal than that covered by the first agreement, to the amount of three car-loads a day; that in making this last agreement, the defendant called attention to the anticipated strike, and •advised the plaintiff that its purpose in purchasing additional coal was to provide against the consequences in the event such a strike should occur; that plaintiff knew the business in wbicb defendant was engaged, tbat it was absolutely necessary for it to have coal in tbe successful conduct of tbat business, and tbat if defendant’s supply of coal ever became exhausted it would suffer serious loss as a consequence; tbat said strike, if occurring at all, did not occur until after tbe lapse of nine days from tbe date upon wbicb tbe plaintiff undertook to commence to deliver tbe coal so agreed to be.delivered; tbat plaintiff wholly failed to comply with said agreement, and as a consequence tbe supply of defendant’s coal became exhausted, and it became necessary for it to go into tbe market and buy other coal in its stead. Tbe plea stated tbe contract price and tbe price at wbicb tbe defendant in open market was compelled to purchase coal; and alleged that in consequence of the non-delivery of coal by tbe plaintiff, defendant was damaged in the sum of two hundred dollars. By amendment it further pleaded, upon tbe premises above recited, tbat, having purchased coal in the open market, it was unable to buy coal of such a quality as tbat contracted to be delivered by tbe plaintiff, and that it was compelled to accept such coal as it could buy, and use in its business; that the coal so purchased was of an inferior quality, it being unable to procure a better quality, and hence tbat in tbe generation of steam it took a larger quantity of the coal so purchased than would have been necessary bad the plaintiff delivered the coal as contracted; that the amount expended by defendant for such coal, in excess of that which it would bave been required to pay tbe plaintiff, amounted.to two hundred and forty-six dollars. The defendant offered evidence wbicb, if believed by the jury, would have established the facts recited in its plea; and upon the conclusion of tbe evidence the court directed a verdict in favor of the plaintiff. Exception was taken to this direction of tbe court, and error is assigned thereon.

1. We think this direction upon the part of the court was error. Tbe contract between tbe parties was legally establisted; and while no time was specified for its continuance, its terms were otherwise fully agreed upon. The plaintiff could not without notice to defendant abandon the agreement. Where no time is specified for the continuance of such an agreement, the plaintiff is bound to deliver and the defendant is bound to receive the articles sold in accordance with the terms of the contract, and neither is at liberty to 'abandon it, except upon notice to the adverse party. The rule is stated as follows: “If a continuous contract fixes no time during which it is to last, and no time is fixed by law or usage, it may be terminated at the will of either party by notice.” Clark on Contracts, 626; 46 Penn. St. 426; Ibid. 434; 86 Ill. 142. There is no law of force in this State which fixes the time for the termination of such an agreement, nor did the evidence show the existence of any custom or usage which varies the rule above stated; the contract, therefore, fell within it, and the plaintiff was bound to perform.

2. The damages were not too- remote or consequential to bo the basis of a recovery. According to the averments of the plea, and the evidence submitted in support of it, the damages actually sustained might properly have been found by the jury to have been within the contemplation of the parties at the time the contract was made for the delivery of coal. The rule in such cases in this State is: “Damages which may reasonably be considered as in contemplation of the parties when the contract was made, are not too remote.” Van Winkle & Co. v. Wilkins, 81 Ga. 93. The effect of the direction of the verdict by the court ivas to withdraw from the consideration of the .jury the questions of fact which should have been left to their determination. We think, therefore, that the court erred in' directing a verdict for the plaintiff; and its judgment is accordingly ' Reversed.