10 Ga. App. 564 | Ga. Ct. App. | 1912
According to the allegations of the petition, the defendant entered into a contract by which it agreed to purchase 10,000 bushels of malt from the plaintiff, at $1.05 per bushel, “f. o. b. Macon,” which was to be ordered out by the defendant until all of it should be taken before October 1; and each shipment was to be paid for by the defendant within 30 days from the date of the shipment. The defendant ordered out, and the plaintiff shipped, at various times, in four shipments, about 8,000 bushels of the malt, and the defendant paid for it. The petition alleged that the plaintiff was willing and offered to deliver to the defendant the balance — about 2,000 bushels — not theretofore ordered out, and requested the defendant to accept it and pay the agreed price therefor, but it was alleged that the defendant would not accept the remainder of the malt, and that thereupon the plaintiff, after giving notice to the defendant, sold it at its market price, on the defendant’s account. This suit was brought to recover the difference between the amount received from the sale of the undelivered portion of the malt contracted for and the contract price at which it had been sold to the defendant. Various letters and telegrams constituting the contract were set out in the petition and attached thereto. The defendant in its answer admitted the correspondence constituting the contract, and that it had agreed to accept the malt as alleged by the plaintiff, and had refused, when requested, to order out the last shipment, or to accept or pay for it. The an
It will be seen, from the above statement, that there was no rejection of any of the malt actually shipped, nor any complaint of the quality of the malt, though the defendant claims deductions for a certain number of pounds of trash and screenings on each shipment, which were allowed by the plaintiff. As the finding for the plaintiff, after the striking of the defendant’s answer was inevitable, and the exception to the action of the court in “rendering final judgment on pleadings from which the material defense of defendant, now and here plaintiff in error, had been stricken on demurrer,” was sufficient, to comply with the ruling in Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047), the only question presented to this court is the one presented by the
The learned counsel for the plaintiff in error, in support of his contention that the delivery of inferior malt was a breach of the contract, and that the Acme Brewing Company was entitled to treat the breach as a discharge from further performance of the terms of the contract in every particular, cites the case of Harden v. Lang, 110 Ga. 394 (36 S. E. 100). It will readily be observed, however, that in the Harden case the principle is distinctly announced that when a breach is occasioned, and the purchaser desires to rescind the contract, he must not only notify the opposite party, but he must return the articles he has received, and Judge Little, in delivering the opinion, says: “When, after such breach, he not only retains the articles received, but puts them to his own use and notifies the seller he has purchased elsewhere the part of (he machinery contracted for but not delivered, this is equivalent to an election to abide by the'terms of the contract, and he thereafter holds under those terms the articles received.” This principle is adverted to in the Henderson Elevator Company case, supra. In that case the defendant had used the corn. The defendant in the present case used the malt. It could not return it. It did not offer
Judgment affirmed. Pottle, J., not ' presiding.