
    28843.
    L. P. GUNSON & CO. INC. v. GARRETT et al.
    
    Decided April 21, 1941.
    
      E. L. Smith, for plaintiff. J. M. Cowart, for defendants.
   Sutton, J.

The plaintiff brought suit against the defendant for breach of a contract under which the defendant purchased from the plaintiff 100 bushels of “Gunson’s Granary Filler” oats, to be delivered to the defendant in the fall of 1932, at $1.50 per bushel, f. o. b. Arlington, Georgia. The breach of the contract is admitted. The evidence for the plaintiff was that the market price of “Gunson’s Granary Filler” oats at the time the defendant wrote a letter to cancel the shipment was 55 cents per bushel, and on the last day of the fall of 1932 about 50 cents per bushel. One of the partners of the defendant testified that the market price of “these oats” was not less than $1.50 per bushel from the time the order was placed until July 28, 1932, when the letter of attempted cancellation was written; but there was no evidence by the defendant as to the price of oats as of the date when delivery was to be made, viz., in the fall of 1932, and on cross-examination the defendant partner stated that he had not received any quotations on “Gunson’s Granary Filler” oats and had not known of any sale of such oats except the one here involved. The jury returned a verdict in favor of the defendant. Held:

1. The evidence of the defendant, properly construed, being as to the price of oats generally, and not purporting to show the market price of the particular kind of oats contracted for, either at the time the letter was written to cancel the order or the time when shipment was to be made, did not make a conflict with the plaintiff’s uncontradicted evidence that the market price of the particular oats was 50 cents per bushel at the time delivery was to be made, and the verdict returned by the jury in favor of the defendant was not authorized. The evidence demanded a verdict in favor of the plaintiff, and the court erred in overruling the general grounds of the plaintiff’s motion for new trial.

2. Because of the above ruling, it is unnecessary to pass on the special grounds of the motion.

Judgment reversed.

Stephens, P. J., and Felton, J., concur.  