
    14879, 14880.
    Ladd Lime & Stone Co. v. MacDougald Construction Co.; and vice versa.
    
   Stephens, J.

1. A party to a contract which relieves him from liability thereunder if performance by him is prevented by causes beyond his control is not prevented from performing by a cause beyond his control, when the other contracting party offers to remové the cause and to facilitate performance; as, where the contract, which is one for the sale of a definite amount of crushed stone to be delivered in quantities during a definite period, provides that the shipments of stone shall be made and consigned to the purchaser at any of certain named railway stations that the purchaser may direct, the seller is not relieved of his obligation to perform upon the ground that performance was prevented by a shortage of railway ears for transporting the stone, and that such shortage was a cause beyond the seller’s control, where such shortage did not exist as to ears leaving the shipping point towards the point of delivery designated in the contract, but existed only as to ears routed through to any of the points of destination, when it appears that the purchaser offered to relieve against such shortage and to remove such cause by offering to accept delivery at a point en route between the shipping point and any of the points of delivery mentioned in the contract.

2. “Where the seller knows that the purchaser is engaged in a construction project which necessitates considerable expenditures by the purchaser from day to day, and that the commodity purchased is needed in such project, and that a delay in its delivery by the seller to the purchaser would be productive of an expense to the purchaser in idle labor and idle equipment, directly traceable to a breach by the seller in failing to deliver the commodity as contracted, the purchaser is entitled to recover for such damage.” Ladd Lime & Stone Co. v. MacDougald Construction Co., 29 Ga. App. 116 (114 S. E. 75).

3. In a suit by the purchaser against the seller to recover for an alleged breach of such contract by the seller in failing to make consignments of stone under the terms of the contract, wherein the seller defended upon the ground that he was prevented from performing, by a cause beyond his control, which was a valid excuse under the terms of the contract, and alleged that such cause was a shortage in railway cars for transporting and delivering the stone contracted for, and where the evidence authorized the inference that such, defense was not true in fact, and further authorized the inference that the damage sustained by the purchaser as a result of idle labor and idle equipment traceable to the seller’s breach was within the contemplation of the contracting parties at the time of the execution of the contract, and that the purchaser had, as a result of the seller’s breach, sustained such damage, and had also as a result' of the seller’s breach sustained damage by reason of an advance in the price of the stone above the contract price, the verdict in damages found for the plaintiff was authorized.

4. Where it is clearly inferable from the evidence that the facts were as indicated in paragraph 2 above, the charge of the court in submitting such issue to the jury was not error upon the ground assigned, that the issue as to whether such damages were in contemplation of the parties was not warranted by the evidence.

Decided September 25, 1924.

Breach oí contract; from Bartow superior court — Judge Tarver. May 25, 1923.

Alston, Alston, Foster & Moise, Neel & Neel, for Ladd &c. Co.

Spalding, MacDougald & Sibley, W. T. Townsend, contra,

5. A hypothetical charge which is not in every respect adjusted to the evidence is not, where it correctly states the law, cause for reversal, if it is not prejudicial to the complaining party. Assuming that the charge of the court in this case, stating the rule as to the right of the seller, who had made similar contracts with other parties, to prorate deliveries under all the contracts when unable by reason of a car - shortage to make all deliveries contracted for under all the contracts, wherein the court said that the defendant did not have “the right at any time to decrease its shipments to the plaintiff in order to fill orders from others, either in excess of the normal output of its business, or which it could not reasonably have expected to fill when taken in addition to the plaintiff’s contract,” was not adjusted to the evidence, it was harmless and in no way prejudicial to the defendant.

6. The court did not err in allowing a witness for the plaintiff to refresh his memory from certain records and to state that certain dates were the dates upon which the plaintiff’s construction project was idle. The fact that the witness testified that the dates were “approximate” went only to the probative value of the testimony as to certainty, and did not for any reason render it inadmissible. Such testimony was admissible as cumulative.

7. While the memorandum from which the witness giving the testimony referred to in the next preceding paragraph, and which memorandum purported to show certain data as to stone on hand each day and the amount received and used, and was prepared by the witness and the plaintiff’s bookkeeper, might not have been strictly admissible in evidence, its admission was harmless and could not have influenced the verdict rendered, in view of the fact that the matters therein referred to were established by other positive testimony.

8. Invoices and vouchers showing the price paid for stone under a contract between the defendant and a person other than the plaintiff, offered by the defendant for the purpose of showing the market value of the stone on certain dates named in the invoices, were properly excluded from evidence, since it does not appear that the prices named in the invoices and vouchers represented the market value of the stone, and since it does not appear that the prices indicated therein were not prices fixed under a contract previously entered into.

9. Applying the above rulings, and the rulings in this case appearing in 29 Ga. App. 116, the court did not otherwise err as contended in the motion for a new trial.

10. The verdict rendered for the plaintiff was authorized by the evidence, and no error of law appears.

Judgment affirmed on the mam hill of exceptions; cross-hill dismissed.

Jenkins, P. J., and Bell, J., 'concur.  