
    12548.
    Willingham & Clary v. Empire Cotton Oil Company.
   Stephens, J.

1. This being a suit wherein the Empire Cotton Oil Company obtained a judgment against Willingham & Clary, purchasing agents for that company, on a directed verdict for the amount of a shortage in shipments of cottonseed shipped by Willingham & Clary to the Empire Cotton Oil Company under a contract between the parties, making Willingham & Clary liable to the Empire Cotton Oil Company for such shortage, and which contract provides that the Empire Cotton Oil Company will settle with Willingham & Clary on receipt of all shipments in carload lots in accordance with the weights as shown by weighers at the plant of the Empire Cotton Oil Company, and the shortage on such shipments having been computed by the weights as shown by the weighers at the plant of the Empire Cotton Oil Company as provided in the contract, and it being undisputed that such scales were correct, the verdict was properly directed.

Decided February 10, 1922.

Attachment; from Wilkes superior court- — Judge Shurley. April 25, 1921.

W. A. Slaton, for plaintiffs in error.

C. E. Sulton, Colley & Colley, contra.

2. The verdict was properly directed notwithstanding a provision elsewhere in the contract providing that all seeds shipped by Willingham & Clary to the Empire Cotton Oil Company shall be weighed “ at such point as the Empire Cotton Oil Company may designate,” since the action of the Empire Cotton Oil Company in weighing the shipments of cottonseed at their plant and calling upon Willingham & Clary for a settlement in accordance with such weights itself amounts to a designation of the company’s plant as the weighing point. The fact that the Empire Cotton Oil Company paid for cottonseed bought for it through Willingham & Clary, its agents, and settled for the same according to the weights made by Willingham & Clary at the point of purchase, cannot be considered as a designation by the Empire Cotton Oil Company of such point of purchase as the weighing point, and as an acceptance of such weights as correct, since the contract provided that Willingham & Clary guarantee the weights as shown in the contracts of purchase, and guarantee to make good any difference in weights between what is shown in their reports of purchase and the weights at the designated weighing point.

Judgment affirmed.

-Jenkins, P. J., and Bill, J., concur.  