Opinion
34098.
DECIDED JUNE 20, 1952.
Complaint; from Fulton Civil Court — Judge Etheridge. April 4, 1952.
Cullen M. Ward, Alex McLennan, for plaintiff in error.
Douglas, Evans Cole, contra.
The petition, showing on its face that the plaintiff waived the delay in the performance of the contract and that the damages sought were not proximately caused by the breach of the time provision in the contract, did not allege a cause of action against the defendant and the court did not err in sustaining the general demurrer thereto and in dismissing the action.
DECIDED JUNE 20, 1952.
Robert L. Jackson, doing business as Flint River Farms, sued the L. S. Brown Company, doing business as Georgia Tent Awning Company, for damages allegedly arising out of a breach of contract. The plaintiff raises and breeds registered Aberdeen-Angus cattle. On or about October 9, 1951, the plaintiff and the defendant entered into an oral contract whereby the defendant was to erect on the plaintiff's farm a 60 by 90 foot tent on the morning of Monday, October 29, 1951. The tent was to be used as an exhibition tent and salesroom for an auction of cattle to be held at noon, Wednesday, October 31, 1951. The plaintiff went to some expense and labor in preparing for the auction in the way of advertising and solicitation of bidders. It was stipulated in the contract that the tent was to be erected by noon, Monday, October 29, 1951, to enable the plaintiff to erect thereunder seats, lighting and sound systems, runways, etc., necessary to the conduct of the auction. On Monday morning, October 29, the defendant failed and refused to erect the tent as agreed. After many requests and demands the defendant finally on Tuesday, October 30, dispatched a tent with an insufficient crew of men to set it up. The plaintiff, in order to get the tent erected in time for the auction, furnished his own employees to assist in the erection which was finally accomplished at 5 p. m. on Tuesday, October 30, leaving an insufficient amount of time before the sale to properly erect the necessary equipment heretofore mentioned. Rain fell on Tuesday, October 30th, saturating the area on which the tent was being erected, causing this area to become very muddy. Because he had to use his employees to help erect the tent, the plaintiff was unable to have his cattle properly groomed for sales exhibition and had to exhibit his cattle uncurried, many of them also being muddy, dirty and covered with manure. During the sale some of the cattle broke through the runways which were too hastily erected because of lack of time and ran out into the crowd thereby creating a disturbance which made both the animals and bidders panicky and created a highly unfavorable situation for the sale. As to the damages allegedly suffered because of the failure of the defendant to erect the tent by noon, Monday, October 29, the plaintiff alleged: "Petitioner shows that petitioner's cattle which were sold on said date were high grade Aberdeen-Angus registered cattle and they were guaranteed to be tested for tuberculosis and Bangs disease, and that they had a reasonable value of $250 per animal above the price at which each animal was sold in the sale conducted under the conditions described hereinabove, and petitioner's inability to auction and sell his said registered cattle at their fair value was the direct and proximate result of the defendant's failure to comply with its contract and erect the said tent by midday noon on Monday, October 29." "Petitioner shows that he auctioned to the high bidder and sold seventy-five (75) head of his said registered cattle and that the average sales price of the cattle was $498 each and was $250 less per animal than it would have been had the defendant complied with its contract and completed the erection of the said tent by midday noon on Monday, October 29."
The court sustained several special demurrers and a general demurrer to the petition and dismissed the action, and the plaintiff excepted.
The petition was subject to a general demurrer. The plaintiff alleged that time was of the essence in the contract and that the defendant was informed that it was imperative that the tent be erected not later than noon on Monday, October 29, 1951. As to the alleged breach the plaintiff averred: "Petitioner shows that as a result of the said defendant's failing and refusing to comply with this contract and its breach in failing to erect its tent on Monday, October 29, your petitioner was damaged in the sum of $18,750." Therefore, the breach complained of was the breach of the time stipulation in the contract. Delay in the performance of a contract wherein time is made of the essence may be waived by the acceptance of the delayed performance. King v. Lipsey, 142 Ga. 832 (1) ( 83 S.E. 957); Turner v. Chambers, 160 Ga. 93, 98 ( 127 S.E. 610); Eaton v. Harwood, 198 Ga. 240, 244 ( 31 S.E.2d 473). "Notwithstanding time is of the essence of the contract, it may be waived, and a subsequent offer to fulfill the contract, and urging a compliance on the other side, instead of treating the contract as at an end, amounts to a waiver." Jordan v. Rhodes, 24 Ga. 478. In the instant case the alleged breach occurred when the tent was not erected by noon, Monday, October 29. After the breach occurred the plaintiff still insisted that the defendant perform the contract as evidenced by the allegation, "Petitioner shows that numerous demands were made on Monday and Tuesday of the defendant to carry out its contract and erect the said tent in order that the sale could be held to the best advantage, and that after many requests on the part of petitioner the defendant finally dispatched a tent with an insufficient crew of men to erect the same on Tuesday, October 30, at about the hour of midday noon." In Alabama Construction Co. v. Continental Car c. Co., 131 Ga. 365, 370, ( 62 S.E. 160), the court said: "If the party who is not in default, by his acts or conduct, induces the one who is in default, before performance, has been had, to perform in a certain manner, generally he will be estopped from claiming damages; or if the party not at fault leads the other to believe that he will not insist upon strict performance, or requests the breach or renders performance impossible in the time or manner specified in the contract, he can not thereafter recover damages on account of a departure from strict compliance thus caused." (Emphasis supplied.) The plaintiff, after the breach and without any reservation of a claim for alleged damages caused by the breach, made "many requests" of the defendant to perform the contract by erecting the tent. We think this amounted to the plaintiff's leading the defendant to believe that strict compliance with the terms of the contract (the time provision) would not be insisted upon and amounted to a waiver of the delay. We recognize that mere acceptance of the performance of a contract wherein time is made of the essence after the time for performance has passed does not always in itself amount to a waiver of the time provision of the contract ( Van Winkle Co. v. Wilkins, 81 Ga. 93, 104 (7), 7 S.E. 644), however, a different question is presented where, as here, performance is insisted upon after the default and knowledge thereof and where there is no reservation of a claim for alleged damages arising out of the delay in performance, and this is especially true where, as here, the alleged damages caused by the breach had not accrued at the time of the performance.
The court properly sustained the general demurrer and dismissed the action for another reason. The damages allegedly caused by the breach were not the proximate result of the breach. The plaintiff was under no legal duty to hold the sale and could have called it off at any time without incurring liability to the buyers. When the plaintiff ascertained that he was not getting a fair value for his cattle he could have withdrawn them from auction. An owner may withdraw his property from auction anytime before the hammer falls. Code, § 20-108; 5 Am. Jur., § 17, p. 455; 7 C. J. S., § 7d, p. 1253. We do not think the defendant could have reasonably contemplated that his breach of the time stipulation in the contract would cause the plaintiff to voluntarily sell his cattle at a price far below their fair value.
It is not necessary to rule on the exception to the judgment sustaining the special demurrers and striking the paragraphs of the petition demurred to.
The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.