3 Ga. App. 766 | Ga. Ct. App. | 1908
The salient facts necessary to be stated are these: The defendant ordered from the plaintiff a bill of queensware to be shipped September 1. On September 5 the plaintiff shipped a portion of the order and sent to the defendant an invoice therefor on which was written the statement, “balance of the order will follow shortly.” The defendant accepted these goods and used them. No further communications or transactions between the parties ensued until November 6, when the plaintiff delivered to the transportation company the remainder of the order; on November 18 the goods arrived at destination and the defendant was so notified; but he declined to receive the shipment and left it in
It is unnecessary for us to determine whether the contract originally was entire or was divisible. The plaintiff tendered a portion of the goods as one instalment; offering to send the remainder as another. The notice written on the first invoice indicated this intention; and the defendant having accepted the first instalment under these circumstances, the law will thereafter construe the contract as divisible, so far as the segregate portions of the original order are concerned. If the contract 'was in fact originally indivisible, this mutual conduct under it made a quasi novation. The separate shipping and invoicing of a portion of the goods at or about the date fixed for delivery, with the notice that the others •would follow soon, accepted by the buyer, operated to convert the transaction into two sales, — one executed, the other to be consum