1. The ruling announced in the first headnote does not require elaboration.
2. The action was brought by the Consolidated Lumber Company of Georgia against John H. McKenzie’s Sons & Company, to recover $20,838.09, besides interest, alleged to be an amount due for material furnished under a contract, consisting of lumber and piling to be used by the defendants in construction of certain railroad wharves and sheds. In an answer in the nature of a cross-action the defendants, admitting the purchase of the lumber and piling described in the petition, set up that the plaintiff did not deliver the articles so purchased “at the times contracted to be delivered, and that by reason whereof, and by reason of-the loss of time,
3. On the trial it appeared that the defendants had been competitive bidders for a contract to be let by the Central of Georgia Bailway Company for the construction of certain wharves and sheds; and that after their bid had been submitted, the amount thereof was reduced on the basis of an opportunity to get the advantage of a bid submitted by the plaintiff to the railway company for furnishing the necessary lumber and piling at a lower price than the defendants would have had to pay elsewhere. Under such circumstances the contract was awarded to the defendants, and a formal instrument executed between them and the railway company
The plaintiff did not complete the delivery of the lumber and pilings within the time specified.
In addition to what has been stated above, the defendants introduced testimony tending to show that the cost of the work in per
The rulings complained of resulted from the court’s construction of the 6th paragraph of the contract. This was held to be a stipulation between the parties adopting a measure of damages for failure to deliver the lumber and piling within the contractual time, and to fix the damages at such an amount as the defendants should be compelled to pay to the railway company, under their contract with that institution, for failure to complete the structures within the time limited for the work. In other words, by construction, the court read into clause six of the contract a part of paragraph thirteen of the contract between the defendants and the railway company, which is fully set out above. Ordinarily all damages naturally and proximately flowing from the failure to deliver the lumber and piling in the contractual time would be recoverable; but under the court’s construction, the damages recoverable would be limited' to less than those naturally and proximately flowing from the breach of the contract. If it should be held that the parties, by agreement, fixed as a measure of damages such “liquidated damages” as the defendants might be required to pay under their contract with the railway company, it might be that the plaintiff would be obliged to reimburse the defendants for money so paid out, although the delay of the plaintiff in executing its contract may not have caused or entered into the cause of delay of the contractors in completing the structures. If the first part of clause six should be construed as fixing a measure of damages for faihire to deliver the lumber and piling in time, it does not purport to fix a partial or conditional measure, but purports to be exhaustive on the subject. This would be incompatible with the provision in the last part of clause six, which authorizes the defendants, in the event of delay by the plaintiff in making the delivery, to buy from other sources lumber and piling for the account of the plaintiff. Clause six of the contract is not clearly expressed from a technical point of view, but it ought not to be given the
4. A motion was made to dismiss the writ of error upon the main bill of exceptions, on the grounds that the bill of exceptions contains (a) no valid assignment of error; (b) no assignment of error to the final judgment rendered; (c) no assignment of error to the verdict returned; (d) no assignment of error showing how or wherein the final judgment rendered, or verdict returned, is erroneous. The bill of exceptions contained recitals setting forth certain evidence relied on by the defendants to sustain their claim for damages as set up in their plea of recoupment, and the ruling of the court excluding the evidence mentioned, after which was the assignment of error: “To this judgment of the court excluding said evidence the defendants then and there excepted, and now except and assign error on the same, and say the court should have overruled said motion and allowed said testimony to remain in evidence, and erred in refusing to do so.” Following this assignment of error was a statement to the effect that after the ruling of the court the evidence was closed, and counsel for the respective parties agreed that under the ruling of the court the plaintiff was entitled to a verdict for a stated amount, and thereupon the court upon motion of plaintiff’s counsel directed a verdict for the plaintiff for the sum so stated, and the jury returned a verdict in accordance with such direction. Following this recital was the further assignment of error: “To this judgment of the court directing the jury to return a verdict 'against the defendants the defendants then and there excepted, and now except and assign error upon the same, and say the court should have overruled the motion to direct a verdict, and erred in refusing so to do.” There was no assignment of error upon any judgment entered upon the verdict; but the direction of the verdict was in effect a judgment by the court, and is to be treated as a final judgment upon which error may be assigned in a direct bill of exceptions, and as sufficient, when error is assigned upon it, to bring under review a proper assignment of error upon a judgment or ruling as to the admissibility of evidence made during the trial. There was no merit in any of the grounds of the motion to dismiss. Scarborough v. Holder, 127 Ga. 256 (56 S. E. 293); Potts-Thompson Liquor Company v. Potts,
Judgment reversed on both bills of exceptions.