33 Ga. App. 511 | Ga. Ct. App. | 1925
1. Where a purchaser has rejected a tender of delivery which under the terms of the contract he was not at the time bound to accept, and where he afterwards, by a valid agreement, waives his right to reject and agrees to accept the property, the latter agreement constitutes a novation of the original contract, in so far as it affects the particular property. The seller may, upon a violation by the purchaser of the latter agreement in refusing to accept the property, store the property for the purchaser’s benefit, and, after due notice to the purchaser, sell it and credit the proceeds of the sale on the contract price, and recover of the purchaser the difference.
2. Where in such a case the seller sought to recover from the purchaser not only upon the alleged new contract, but also to recover the contract price of other property tendered by the seller and actually accepted by the purchaser under the original contract, and where the rejected property which was the subject-matter of the alleged new contract, and some of the other property ordered and accepted under the original contract, had been shipped in six freight-cars, and where the purchaser contended that the six freight-cars were shipped prematurely, in violation of the terms of the original contract, and where the prtrehaser did not afterwards use any of the rejected property, but did use the property ordered and accepted which was shipped in one of the six freight-cars, a charge by' the court to the following effect was calculated to mislead the jury into the belief that an acceptance and use by the purchaser of that part of the property which it had actually ordered and accepted and which was shipped in one of the six freight-ears amounted to an acceptance of the other property, which the purchaser had rejected and the possession of which the seller had retained: “If the plaintiff shipped to the defendant six carloads which were not ordered out, the defendant would not be under any obligation to accept, under the terms of this contract, the tile so shipped; and that would be a breach of the plaintiff’s contract; but if the plaintiff did ship six cars of tile to the defendant, without it being ordered out under the terms of the contract, and the defendant (if you find it to be a fact) used any portion of this tile in the construction of the building referred to in the contract, or if the defendant agreed to accept the tile notwithstanding it may have been shipped without being ordered out, then the defendant would be liable to the plaintiff.”
3. If at the time of the execution of the original contract of sale the seller knew that the purchaser was under a contract to resell the property contracted to be purchased, damages resulting from a loss to the purchaser of the profits inhering in his contract of resale, caused by the seller’s breach of the original contract, would be recoverable. Civil Code (1910), § 4395; Ladd Lime & Stone Co. v. McDougald Construction Co., 29 Ga. App. 116 (2).
4. Where the original contract of sale provides that the property shall be shipped and delivered only when the purchaser directs, a shipment by the seller and a tender of delivery to the purchaser, when made pre
5. It was error to strike the defendant’s plea setting up a counterclaim, and also to charge the jury as indicated in paragraph 2 of the syllabus above. No other error of law appears.
Judgment reversed.