Improved Fertilizer Co. v. Swift & Co.

Wade, J. (After stating the foregoing facts.) Since, under the well-settled rule, a judgment refusing a nonsuit will not be reversed, if from an examination of the record it appears that the evidence as a whole was sufficient to support the verdict returned in favor of the plaintiff (Atlantic & Birmingham Railway Co. v. Sumner, 134 Ga. 673, 68 S. E. 593), and it has been further held that “an exception to the refusal to order a nonsuit will not be considered, where, in the motion for a new trial, which was overruled, error is assigned on the ground that the verdict is contrary to evidence and without evidence to support it” (Duncan v. Redd, 14 Ga. App. 306, 80 S. E. 726), it is unnecessary to consider the exceptions in this ease based upon the refusal of the trial judge to order a nonsuit when the plaintiff closed its evidence in chief. See also Henderson v. Maysville Guano Co., ante, 69 (82 S. E. 588); Weller v. Davis & Sanford Co., ante, 79 (82 S. E. 593), and cases there cited. The original plea filed by the defendant admitted as true the allegations contained in the 4th paragraph of the petition, which were, in effect, that the plaintiff had faithfully performed all its obligations under the two contracts which formed the basis of the suit, and that the defendant had failed and refused to accept a portion of the goods contracted for, to wit, 200 tons of tankage and 25 tons of blood, and had refused to order out these goods and had notified the plaintiff not to ship the same; though it is also true that in the 2d paragraph of the answer the defendant denied that it had refused to comply with its part of the contract, and later, by an amendment, the admission originally made was withdrawn. “A defendant may file inconsistent and contradictory pleas, but the plaintiff may take advantage of the contradictory nature of the defenses, and may use, as an admission against the defendant, a statement made in one of the pleas, though in another part of the defense there is set up a contradictory state of facts.” White Sewing Machine Co. v. Horkan, 7 Ga. App. 283 (66 S. E. 811). Even “an admission contained in an answer of the defendant filed by him in another case is admissible in evidence against him when pertinent to an issue involved in the ease on trial.” Sons and Daughters of Job v. Wilson, 4 Ga. App. 235 (61 S. E. 134) ; Watkins v. Fontaine, 14 Ga. App. 321 (80 S. E. 694).' Even the admissions.in a bill in equity,'filed only by counsel and not sworn — 610 — to by the complainant, may be given in evidence. Lamar v. Pearre, 90 Ga. 377 (17 S. E. 92). “Admissions óf fact in a pleading can always be taken advantage of by the opposite party, even though the pleadings should be stricken or withdrawn.” McElmurray v. Blodgett, 120 Ga. 9, 16 (47 S. E. 531), and cases there cited. “This rule, however, has no application where the admission is simply an opinion on the part of the party making it as to the legal effect of a paper.” Id. If admissions are made, they are to be taken as true “because they are asserted by the party himself; and while he may withdraw them formally from the pleadings, he can not. by a mere withdrawal avoid the effect of the admissions made.” Cooley v. Abbey, 111 Ga. 439, 443 (36 S. E. 786). See also Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138 (33 S. E. 945). It has been held that “the defendant may invoke and use allegations beneficial to himself made in plaintiff’s declaration, without offering the declaration itself in evidence or otherwise proving the admissions contained in such allegations” (East Tenn. Railway Co. v. Kane, 92 Ga. 187 (5) (18 S. E. 18, 22 L. R. A. 315), and of course it is equally true that the plaintiff can use admissions made in the defendant’s answer in the same case without actually offering the answer itself in evidence. In the case now before us the admissions in the answer (which had been previously withdrawn) were formally placed in evidence. Under the present law as to pleading, any averment distinctly and plainly made in the plaintiff’s petition, which is not denied by the defendant’s answer, shall be taken as prima facie true, unless the defendant states in his answer that he can neither admit nor deny such averment, because of the want of sufficient information. Civil Code, § 5539. Also, under a statute now existing (Civil Code, § 5775), “without offering the same in evidence, either party may avail himself of allegations or admissions' made in the pleadings of the other.” Admissions of this character are onty prima facie true, however, and may be withdrawn and the contrary shown by proof. But the jury undoubtedly may elect to believe the admissions originally made in a plea, even after the admissions have been formally withdrawn, where tendered in evidence and supported by other proof, as in this case, notwithstanding evidence to the contrary in behalf of the defendant. It appears, therefore, that under the general grounds of the motion for a new trial, the question for solution is whether the en — 611 — tire evidence in behalf of the plaintiff, with the admissions made in the original plea of the defendant and placed in evidence after having been withdrawn, would authorize the verdict returned by the jury. "We have set out practically the entire evidence, and from an examination thereof it may be said generally that some of the communications from the defendant to the plaintiff might be interpreted as merely a request for the cancellation of the two contracts upon which the suit was based; or on the other hand, they might be construed, in connection with the related circumstances, and especially when taken in connection with the admission made in the original plea, as a cancellation on the part of the defendant. In other words, whether there was or was not a cancellation intended by the defendant company and communicated to the plaintiff was a question of evidence entirely for determination by the jury; and, notwithstanding the express assertion on the part of Bush, the manager of the defendant company, that the company never refused to comply with the contract and did not refuse to take and pay for the goods, the jury could have reached a different conclusion, not only from the admission in the original plea, but from the language employed in several of the letters and telegrams, the substance of which has been given, and also from the fact that the plaintiff was unable to obtain a definite response from the defendant to numerous communications asking in effect or in so many words the direct question whether or not the defendant proposed to accept the goods, and requesting shipping instructions. It will be observed that the'plaintiff wired the defendant, even as late as March 26, and again on April 1, 1912, in regard to the blood and tankage; and, so far as the record discloses, though these communications would seem to demand an answer, absolutely no response was elicited from the defendant. Previous letters, as will appear from the statement of facts, equally urgent and equally requiring an answer, appear also to have been quietly ignored: "Acquiescence, or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission.” Civil Code, § 5782. "In the ordinary course of business, when good faith requires an answer, it is the duty of a party receiving a letter from the other to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his corre — 612 — spondent, and to adopt them.” Civil Code, § 5741. That “silence gives consent” has become axiomatic. The jury may have considered the failure on the part of the defendant to reply frankly and candidly to the question propounded by the plaintiff in their letter or telegram of February 17, 1912 (“Do you refuse to accept this material for February shipment?”), and the question propounded in the telegram or letter from plaintiff on February 19 (“Do you refuse to accept balance of blood and tankage sold you for February delivery?”), to have been in effect an answer in the affirmative, since good faith and business candor would alike seem to demand an explicit reply. Especially would this conclusion be warranted when it is considered that prior to the date of these telegrams or letters which apparently remained unanswered,, the defendant had stated to the plaintiff, on January 20, that it was compelled to ask for a cancellation of the two contracts and could not pay for the goods, and, on February 13, that it did not see any chance just now to pay for the goods, and still “insisted on a release” from the contracts; and on March 2 stated to the plaintiff that it would be impossible to pay for the goods, and advised that “you had better release us and save trouble and expense.” Then too, the jury might have taken into consideration the fact that the original admission made by the defendant, that the contract had been canceled and it had refused to accept the goods, was not withdrawn until several months thereafter, at the actual trial of the case, and not then until after two other amendments had been offered and allowed by the court. Otherwise it is not contended, except in the general terms of the original grounds of the motion for the new trial, that the evidence as a whole was not sufficient to warrant the verdict. The market value o'f the goods purchased appears definitely to have been shown on the date fixed by the contracts, and the contracts themselves state the price to be paid, and the measure of damages can easily be arrived at. The jury passed on all the questions of fact coming legitimately within their province, and, since there was evidence sufficient to support the verdict, we may not disturb their finding, unless for some of the special assignments of error set out in the motion, which' we will briefly discuss in their proper order. The assignment of error as to the refusal of the! court to grant a nonsuit has in effect been already discussed. The second special — 613 — ground of the motion for a new trial assigns error because the court allowed the witness Eogers to testify, as set out in the statement of facts, what the market price of tankage in Chicago was in the first week of February, based on two contracts made by the Swift Fertilizer Works on January 30 and February 6. The evidence set out in this ground, certified to by the court, does not appear in the identical words of the brief of evidence itself. Taking the testimony complained of, in connection with the entire evidence of this witness, it will be -seen that his testimony as to the market price of blood and tankage does not appear to have been based exclusively on any special contracts of the Swift Fertilizer Works. The witness said that on February 3, 1913, the Swift Fertilizer Works purchased from Swift & Company blood at 3.8iy2 per unit of ammonia at Chicago, which “c. a. f. Eastman, Ga. would be 3.31%,” and that, “taking these figures as the market price (and they are the marlcet price), blood had declined 37 cents per unit, or $6.39 per ton from the time of the contracts sued on to the time for delivery under them;” and that “the difference on the 35 tons of blood which were not delivered, in contract C-119, amounted to $157.35, the same being the difference between the contract price and the market price at the time for delivery under the contract in Chicago.” Also, this witness testified that the price of tankage had' declined from the time of the contract therefor to the time for delivery thereunder, and the difference on the 300 tons of tankage not delivered, in contract C-118, amounted to approximately $1,340, “the same being the difference between the contract price and the market price at the time for delivery under the contract in Chicago, based on the values of January 30 and February 6.” It may be that the witness based his statement as to the market price of blood and tankage during the first week in February on two dates only, but, taking the evidence altogether, it does not necessarily appear that his statement as to market values was based exclusively on the contracts made between the Swift Fertilizer Works and Swift & Company. Besides, no'material harm could have resulted to the defendant, even had the testimony of Eogers as to the market value of blood and tankage during the first week in February, 1913, been based entirely on the price paid by the Swift Fertilizer Works on two or more special contracts, since the defendant did not undertake to dispute the testimony intro — 614 — duced by the plaintiff as to the market values of blood and tankage, and these values were shown with sufficient clearness and certainty by other testimony from King, Field, and Ober, which was by its.elf amply sufficient to support and authorize the verdict returned by the jury. , We think that the instructions complained of in the 3d and 4th special grounds of the motion for a new trial contained no intimation of opinion that the defendant had refused to comply with its part of the contract, and had refused to take and pay for the goods bought, and had thereby made a breach of the contract, as is insisted by the plaintiff in error. The judge undertook therein merely to define to the jury an “executory contract,” and instruct them as to what would amount to a breach thereof, and to inform them what would be the proper measure of damages “if a purchaser refuses to take and pay for goods bought” and notifies the plaintiff before shipment that the goods will not be accepted, etc. The charge was adapted to the issues raised by the pleadings and the evidence, and it appears to us to have been fair and impartial and not subject to the criticism made thereof. The assignments of error are without substantial merit, and, the evidence being sufficient to warrant the verdict, the judgment overruling the motion for a new trial is Affirmed. Broyles, J., not presiding.