Oxford Knitting Mills v. American Wringer Co.

Russell, J. (After stating the foregoing facts.) Where a plea is bad in substance, it is not error to rule out evidence tending to support it. Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280). The only question presented, therefore, for our determination is whether or not the items of damage, to wit, interest on the amount invested in the factory, and the fixed charges of operating the factory during the period it was closed down, could be properly recouped against the plaintiff in this case. In no event would interest on the amount invested in the knitting mills be the proper measure of damage in a case of this kind. If the manufacturer of the wringers could be held liable at all for the closing down of the factory, the defendant could not recover interest, for the simple reason that interest was not lost. Albany Phosphate Co. v. Hugger, 4 Ga. App. 771 (62 S. E. 533). The other items of damage set up present a different question, but we do not think they are recoverable against the plaintiff. The plaintiff did not agree to deliver the wringers at any particular time, and even if it had agreed to do so it could hardly have been in the contemplation of the parties that defendant would shut down its factory before the wringers arrived, remove the old machinery and send its employees on a jaunt of their own at full pay. Furthermore, when the wringers did not arrive as the defendant anticipated, it does not appear that the old machinery which had been removed could not have been replaced and the millR opened up again. Ordinary diligence to lessen damage would have required the defendant to replace the six old machines, and continue the operation of the knitting mills. Delays in shipments will occur, and one who in anticipation of the arrival of a shipment closes down his factory, removes the old machinery, pajrs [645] his employees full wages, and keeps his boiler under steam so that his insurance policy will not lapse, while he awaits the arrival of the shipment, should blame no one but himself if the shipment does not arrive promptly. Certainly he should not seek to charge all this loss to the plaintiff, who had made an honest mistake in routing a shipment which he had not agreed to deliver at any particular time. Furthermore it does not appear that the defendant’s factory could not have been operated without these wringers. See Christophulos Café Co. v. Phillips, 4 Ga. App. 822 (62 S. E. 562); Jester v. Bainbridge State Bank, 4 Ga. App. 469 (61 S. E. 926). Judgment Affirmed.