2 Ga. App. 213 | Ga. Ct. App. | 1907
Dilman Brothers brought their suit upon an open account against the Patterson Produce & Provision Company, for $232.16; this amount representing the price of a car load of Danish cabbage and Baldwin apples, shipped on Lehigh Valley ear No. 5,609, from Waterloo, N. Y., on March 20, 1905, by Dilman Bros., “order notify” Patterson Produce & Provision Company, at Cordele, Ga.- The plaintiffs had the bill' of lading for the shipment taken to their own order, a,nd attached thereto a draft for the purchase-money of said produce, drawing through the Cordele National Bank of Cordele, Ga., and the draft, together with the bill of lading, was presented to the defendant for payment. The defendant refused to aecejjt the car of produce or to pay the draft, and notified the plaintiffs of this fact immediately; and the plaintiffs instituted this suit. Upon an agreement between the counsel in the case, the issue was submitted to the court without a jury; and after hearing - the evidence the court rendered a judgment in favor of the plaintiffs for said amount of the purchase-price of the produce. The defendant made a motion for a new trial upon various grounds. Upon the hearing of the motion his honor, Judge Strozier, granted a new trial; and this is the error assigned in the bill of. exceptions1. • ■
As the new trial was granted for the sole reason that it appeared from the evidence “that the goods sued for were never delivered to- the defendant, and for this reason an action upon account could not be maintained,” it is .only necessary to, consider two grounds of the.motion for new trial, Th.ese are as follows: “(3) Because the court.-erred in rendering judgment in favor of the plaintiff, for the reason that under the evidence the contract was an execu
It is well settled that delivery of goods is essential in order to-maintain an action for the purchase-price. It is true that actual delivery may be dispensed with by agreement of the parties, and also true that by constructive delivery (where such is shown by the evidence) actual manual possession of the goods by the vendee is not necessary' to complete the sale. But to complete the sale of personalty there must be a relinquishment by the vendor to the vendee of dominion and control of' the property sold. The evidence in this case shows that the parties contemplated a cash transaction, and that actual delivery should be had before the sale was complete. Under the Civil Code, §3545, “until delivery is made or dispensed with, the goods are at the risk of the seller,” and “if a purchaser refuses to take and pay for goods bought, the seller may retain them and recover the difference between the contract and the market price at the time and place of delivery, or he may sell the property, acting for this purpose as agent for the vendee, and recover the difference between the contract price and the price on resale, or he may store or retain the property for the vendee and sue him for the entire price.” Civil Code, §3551. The contract was an executory and not an executed contract, for the reason that Dilman Bros., as sellers, took a bill of lading from the railroad company to their own order, and attached draft to same for the purchase-price, drawing on the defendant, through the bank -of the defendant’s residence. The vendors thereby retained title
The case of Maddox v. Wagner, 111 Ga. 146, 36 S. E. 609, lays down the rule that a breach of an executory contract for the purchase of goods will not support an action upon an open account for the price thereof. Then, was this an executory contract ? The goods were ordered by telegram and were consigned to the order of the shippers. One of the stipulations of the bill of lading was ns follows: “Not negotiable. If the word ‘order’ is written immediately before or after the name of the party to whose order the property is consigned, the surrender of the hill of lading, properly indorsed, shall be required before the delivery of the property at destination, as provided by section 9 of the conditions of the uniform hill of lading, on the back thereof.” And on the back of the bill of lading was the following: “(9) If the word ‘order’ is written hereon immediately before or after the name of the party to whose order the property is consigned (without any conditions. or limitations- other than the name of a party to be notified of the arrival of the property), the surrender of this bill of lading' properly indorsed shall he required before the delivery of the property at destination. If any other than the aforesaid form of consignment is used herein, the said property may, at the option of the carrier, he delivered without requiring the production or surrender of this bill of lading.” As before stated, this bill of lading was attached, to a draft for the purchase-price drawn on the Patterson Produce & Provision Company, and under the Civil Code, §3554, neither the title to the goods nor the right to the bill of lading passed to them until they either accepted, or accepted and secured, or paid that draft. As held by the Supreme Court in Farmers’ & Traders’ Bank v, Allen-Holmes Company, 122 Ga. 69, 49 S. E. 817: “Under the very terms of the contract of shipment the carrier obligated itself to transport the car and hold it subject to the orders of the holder of the bill of lading, whether
The case of Woodward v. Solomon, 7 Ga. 246, cited by learned counsel for plaintiff in error, does not rule contrary to what we now hold. In that case the vendor had been paid in full for his property, and in writing relinquished dominion and control to the vendee. In the Woodward case the vendee, having paid the price, not only had the right of property, but was also entitled to the possession. The vendor did everything there was to be done, and the rule laid down in that case is merely that, if there is nothing to be clone by the vendor, the title passes to the vendee. In other words, the court was simply discussing the question of title to property under sales generally. As said by Justice Lumpkin, in Allen v. Hollis, 31 Ga. 143 (1) : “When goods are sold, and nothing is said as to the time of delivery or time of payment, and everything the seller has to 'do is complete, the property vests in the buyer.” And, after remarking that Broom’s Commentaries upon the Common Law contained more law than any volume of its size extant, he quotes from that book as follows: “Property in specific chattels may pass without delivery. ‘ It will so pass when, at the time of the bargain, everything is already done which according to the intention of the parties was necessary to transfer the property. The appropriation of the property, being equivalent to a delivery by the vendor and the assent of the vendee to take the specific chattel and pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the chattel in the bargainee.” The rule is nothing more or less than that transfer of title (the right of property) is equivalent to delivery and dispenses with it. The doctrine has no application in this case, for the vendor in this case expressly reserved title by attaching the bill of lading to the draft.
If Dilman Bros. had consigned the goods directly to the Patter
It is not necessary to consider the other questions raised in the record. While it is trne, as a general rule, that the first grant of a new trial on the part of the trial court will not be reviewed or controlled, still the general rule as to the discretion of the presiding judge in granting a first new trial does not apply when the new trial is granted solely on a question of law.
Judgment affirmed.