Cable Co. v. Hancock

2 Ga. App. 73 | Ga. Ct. App. | 1907

Powell, J.

(After stating the foregoing facts.) The usual and implicit power of a traveling salesman is merely to take orders, offers to buy, and not to make completed contracts of sale. Such was the fact in this case. Even in the absence of a condition in the written instrument itself requiring approval or acceptance by the principal, the law would have implied such a condition in the transaction. The writing (although in form, save only for the clause requiring approval, a binding contract) needed something to make it complete, viz., the acceptance of its terms by the opposite party; for, until the opposite party agreed to sell on the terms in the writing mentioned, the promisor’s agreement to buy _ and to pay was without consideration. Until the owners of the piano made a valid promise to sell, the consideration contemplated for the promise to buy and to pay was unilateral, and amounted only to a mere offer. This principle is now so well established by a large volume of authority as not to require specific citations.

2. The price of the piano was more than $50, and therefore the transaction was within the purview of the statute of frauds, and no oral approval or acceptance of the contract by the seller would render it binding on him. Until the seller became bound to the contract by a' writing, or by some act which would take the transaction out of the statute of frauds, the buyer could not have field him to its terms; and it therefore was lacking in the essential element of mutuality. Sivell v. Hogan, 119 Ga. 171, 46 S. E. 67. Delivery of the piano under the contract, and acceptance thereof by the buyer, would have been sufficient to make the contract complete. The buyer’s custody of the piano under the circumstances stated, however, did not have this effect. Compare Loyd v. Wight, 20 Ga. 574, 65 Am. Dec. 636 s. c. 25 Ga. 215; Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 42 S. E. 366.

3. 'Until the contract became' mutual, the buyer had the right to withdraw -his assent. Therefore he had the right to withdraw it at any time before the seller entered his written approval. He exercised this right, and the verdict directed in his favor was therefore demanded. See Sivell v. Hogan, 119 Ga. 173, 46 S. E. 67; Atlanta Buggy Co. v. Hess Spring Co., 124 Ga. 338, 52 S. E. 613, 4 L. R. A. (N. S.) 431.

Judgment affirmed.