36 Ga. App. 140 | Ga. Ct. App. | 1926
Lead Opinion
This was a suit under section 4131 of the Code for loss sustained by the plaintiff vendor in pursuing the remedy fixed by the second clause of that section. It appears that about January 20, 1925, the plaintiff and the defendant entered into an executory contract for the sale of fifteen tons of feed-stuff, which contract provided for immediate shipment of three tons of the commodity, with the right of cancellation on the part of the vendee in ten days if the preliminary shipment proved unsatisfactory; otherwise the remainder of the goods to be shipped February 28, 1925, “or as ordered out.” After the preliminary shipment no shipping instructions for the remainder of the order were given by the defendant, and on February 28, 1925, or within a day or two thereafter, the goods were shipped to the defendant at Oglethorpe, Georgia, from the place of business of the plaintiff at Birmingham, Alabama, the goods reaching Oglethorpe on or before March 3, 1925, since the defendant .telegraphed the plaintiff at 3 o’clock p. m. on that date as follows: “Car feed here we can not use price entirely out of line for the grade of feed shipped make disposition.” No complaint was then made that the goods were not shipped within the time .provided in the'“contract. On March 3, or the next’day, the plaintiff’s representative visited the defendant, who contended that the goods were not of the grade
Judgment affirmed.
Concurrence Opinion
concurring specially. I concur upon the ground that the plaintiff had not violated the contract-as to time in the shipment of the goods. •