25 Ga. App. 183 | Ga. Ct. App. | 1920
The controlling question in this case is whether the defendant was authorized to handle, on a consignment basis, the potatoes shipped to him by the plaintiff. The record shows, without dispute, that the defendant offered to accept the potatoes, either on such a basis or on that of a straight sale, and that the plaintiff shipped them without notifying the defendant on which basis he wanted them handled. Under these circumstances the defendant had a right to elect on which basis he preferred to handle them, and the uncontradicted evidence is that he handled them on a commission basis, and paid the plaintiff what was due him on that basis. Upon the trial of the case there was no material issue of fact. The question whether the weight of the potatoes was more than as reported by the defendant was immaterial, since the correspondence between the parties, after the controversy had arisen as to whether the shipment was on a straight sale or on a commission basis, shows that the plaintiff virtually acquiesced in and agreed to the weights as reported to him by the defendant, and that the plaintiff’s sole contention, prior to the filing of the suit, was that he had shipped the goods on a straight sale basis, and, therefore, that the check from the defendant (which he accepted and cashed) for an amount less than what would have been due him on that basis did not constitute 'an accord and satisfaction. “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon another and different consideration. He
It follows from wliat bas been said that the trial judge did not err in directing a verdict for the defendant, and that the certiorari was properly overruled.
Judgment affirmed.
