22 Ga. App. 524 | Ga. Ct. App. | 1918
(After stating the foregoing facts.) The main question in the instant ease arises upon the construction of the contract between the parties. Was the time of shipment limited to the months of November and December, or was it limited to ninety days from the date of the contract, ,to wit, November 10, 1914? If limited to the months of November and December, the plaintiff should have ordered out the flour during those months, and, having failed to do so, no right of action would lie in its favor.
The cardinal rule of construction of a contract is, of course, to give effect to the intention of the parties, if that can be arrived at. Civil Code (1910), § 4266. If there are apparently inconsistent clauses in the contract, one written upon the face of the contract in a blank prepared for that purpose, and the other printed upon the back of the contract, that which is written by the parties in the face of the contract will generally be accepted, rather than the inconsistent clause printed upon the back thereof. Civil Code (1910), § 4268 (6); Augusta Factory v. Mente, 132 Ga. 503, 508 (64 S. E. 553); Surles v. Milikin, 97 Ga. 485 (25 S. E. 322).
From the correspondence which took place between the parties in connection with the signing of the contract, immediately before and immediately thereafter, it was the evident intention of the parties that the time of shipment should be limited tp ’November and December. The first telegram, which was sent to the milling company on November 2, specified sixty days. The reply of the milling company, on November 3, said, “500 within sixty days.” (‘Italics ours.) The order from the grocery company) a copy of which is set out in the statement of facts, specified: “Date of shipment November and December.” (Italics ours.) The confirmation of this from the milling company to the plaintiff was of the same form, except that, instead of the clause above quoted, it specified, in the face thereof, “Time of shipment November and De
Moreover, upon a careful reading of the contract, we do not think that the clause in the face of the contract, limiting the shipment to the months of November and December, is really inconsistent with the provisions of the contract printed on the back thereof. These conditions printed on the back are evidently general rules governing the sale of flour and feed, adopted by the Southeastern Millers Association, and are intended to apply where the time or period of shipment is not otherwise specified in the contract. The second paragraph of these printed conditions begins with the clause “Unless otherwise specified (italics ours), purchases must be ordered out within 30 days from date of contract, with a maximum possible limit of 90 days from date of contract.” So that this printed condition, as set out in paragraph 2, fixing a maximum possible limit of 90 days from date of contract, applies unless it is otherwise specified in the contract. A reasonable construction to be placed upon this clause of the contract is that this maximum possible limit of 90 days from date of contract will not apply where the parties fix in the face of the contract a time dr period of shipment. It is intended, by this paragraph 2, to provide for a limit within which purchases must be ordered out where the contract itself does not provide for such limitation. The remainder of this paragraph provides for carrying charges to be paid by the buyer, under certain conditions, and for certain credits to be given to the buyer, under certain condi
A contract of the precise form of the one before this court was construed by the Supreme Court of Alabama, in the case of Hopkinsville Milling Company v. Gwin, 179 Ala. 472 (60 So. 270), except that in the Alabama case it was provided, in the face of the written contract for the sale of the flour, that the date of the shipment was at “buyer’s option.” On the back of the order appeared the same printed conditions as in.the contract now under consideration, viz.: “Unless otherwise specified, purchases must be ordered out within thirty days from date of contract,” .etc. The suit in that case was by the seller against the buyer, for a breach of contract in declining to order out the flour according to the terms of ■the contract and to accept the shipment. The judgment was for the defendants, and the plaintiff appealed/ It was contended by the plaintiff, the milling company, that the phrase “Buyer’s option,” written on the face of the order, was substituted for and took the place of the printed provisions on the back, referring to the dates of shipment and of delivery; or in other words, that this order was one within the protection of the printed provision, “Unless otherwise specified,” and that the terms and dates of delivery were .otherwise specified in this contract. The construction contended for by the vendees, and the one which seems to have been adopted by the trial court, was that the printed condition on the back of the order controlled. The Supreme Court of Alabama reversed the judgment of the court below, 'and held that the stipulations on the face of the contract governed. See also King v. Faist, 161 Mass. 449 (37 N. E. 456).
The time of. delivery in the instant case is of the essence of the contract, and it was obligatory upon the buyer to order out the flour within the limit provided by the terms of the contract, i. e. during the months of November and December; and)- having failed to do so, it would have no right of action against the defendant. Gude v. Bailey, 4 Ga. App. 226 (61 S. E. 135); 35 Cyc. 175 (7); Augusta Factory Co. v. Mente, supra; Henderson Elevator Co. v. North Ga. Milling Co., 126 Ga. 279, 281 (55 S. E. 50); Savannah Ice Co. v. American Transit Co., 110 Ga. 142 (35 S. E. 280); Big
Under the construction which we place upon this contract, it being undisputed that the 200 barrels of flour were not ordered out during the months of November and December, the recovery by the plaintiff was not authorized, and a new trial necessarily results.
This question being controlling in the case, it is not necessary to consider the other grounds of the motion for a new trial.
Judgment reversed.