Southern Brighton Mills v. Mill

Jenkins, P. J. The former adjudication by this court in this case (41 Ga. App. 630), to the effect that under the original pleadings the contract sued on by the purchaser of yarn did not fix or provide any required tensile strength merely because the declaration set forth that the contract contained a provision that “yarn is to be the same quality as that furnished on Brighton Mill contract 3575; yarn to be spun 22.60/1 and true to number,” and further set forth the provision of the Brighton Mill contract 3575 as follows: “20’s or 23’s Karded Peeler White Cotton Yarn — yarn to test not less than 20’s — 100 lbs. for standard 120 reeling, 23’s — 85 lbs.,” does not authorize a ruling that the petition as amended subsequent to the ruling by this court, setting forth alleged usages, customs, and technical meanings given to words by the trade, of such universal practice and application as must have been and were in the minds of the parties so as to form by implication a part of the agreement, so that, according to such pleaded usages, customs, and technical meanings, when the tensile strength of number 20 yarn (meaning 20 hanks to the pound) or the tensile strength of number 23 yarn is known, the tensile strength of yarn of another size, but of the same quality, such as number 22.60 yarn, is known or can be determined with mathematical certainty, failed to set forth a cause of action, on the ground that the petition failed to show that the yarn as purchased should measure up to any degree of tensile strength whatsoever. Civil Code (1910), §§ 5793, 4268 (5) ; Deadwyler v. Karow, 131 Ga. 227, 236 (62 S. E. 172, 19 L. R. A. (N. S.) 197). Accordingly, the court erred in sustaining the demurrers to the’plaintilf’s suit for damages as thus amended, and in entering up judgment in favor of the defendant vendor on its counterclaim. Judgment reversed. Stephens and Bell, JJ., concur. H. J. Lyall, Barry Wright, for plaintiff. Maddox, Matthews & Owens, for defendant.