Huggins v. Southeastern Lime & Cement Co. , 121 Ga. 311 ( 1904 )

Cobb, J.

1. The bill of exceptions recites that the plea was stricken upon the ground that the contract set forth therein was unilateral, but the order sustaining the demurrer does not state upon what ground the demurrer was sustained. If the plea was properly stricken for any reason set forth in the demurrer, the judgment will be affirmed.

2-4. The contract was clearly unilateral. 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 in any stated or otherwise definite quantity. See Harrison v. Wilson Lumber Company, 119 Ga. 6 (3), and cit. The paper relied upon as a contract contained a mere offer to sell at stated prices during 'a given time. Until this offer was accepted the cement company was at liberty to withdraw; but if, before a withdrawal, Huggins had ordered a definite quantity of cement, to be delivered according to the terms of the proposal, the Cement Company would have been bound to deliver. McCaw Mfg. Co. v. Felder, 115 Ga. 408. Unless that portion of the plea which relates to the refusal of the Cement Company to fill the contract which Huggins had made with the Tallassee Power Company sets forth a cause of action, the judgment striking the counter-claim was proper. That portion of the plea, taken in connection with other parts of the plea, alleges facts which would be sufficient to authorize a recovery of an amount representing the difference between the price of cement stated in the contract and the market price in Athens at the time delivery should, have been made. But the plea does not claim damages of this character, the damages- claimed being the difference between the contract price and the price at which the cement was sold to the Tallassee Company, together with the amount of damages which that company claims against Huggins on account of his failure to comply with his contract of sale. Huggins is not entitled to recover damages of this character, unless, the Cement Company had notice that the order was for cement which -&as to be the subject of a resale. Wappoo Mills v. Guano Co., 91 Ga. 396. Of course the Cement Company knew that Huggins as dealer would buy only for the purpose of reselling ; but before it would be liable for the special damages resulting from a failure to fulfil a particular contract of resale, it was entitled to notice that the goods embraced in the particular order were the subject of a resale. The demurrer pointed out the defects in the plea with sufficient particularity, and was properly sustained. Judgment affirmed.

All the Justices concur.