26 Ga. App. 554 | Ga. Ct. App. | 1921
(After stating the foregoing facts.) This is not a suit for the purchase-price of goods sold and delivered on
The instant case is also distinguishable from that of Linder v. Cole Bros. Co., 10 Ga. App. 102 (72 S. E. 719), where the
It is contended, however, that the mere shipment and .tender of the goods to the defendant at Tignall, in the plaintiff’s unsuccessful effort to get the defendant to comply with his contract by accepting them, amounted to an election by the plaintiff not to store or retain the goods, and operated as a complete waiver of the right of procedure subsequently resorted to. When the defendant canceled his order and renounced his contract of purchase, such notice to the plaintiff was “not only a repudiation of the contract, but also a revocation of the carrier’s agency to receive them” for him. Oklahoma Vinegar Co. v. Carter, supra, quoting Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 536 (18 Atl. 1058, 17 Am. St. Rep. 788); Rounsaville v. Leonard Mfg. Co., supra. Since the railroad company remained throughout the transaction the agent of .the plaintiff, and was continuously so treated- by it in the giving of shipping instructions and in the payment of charges, the possession of the goods in the hands of the carrier was in effect the act of the plaintiff. The mere proposal by way of tender cannot, therefore, be taken as such an election of remedies as would of itself preclude the plaintiff from thereafter resorting to the remedy given it under the statute law. It would not seem reasonable and just to hold that the rights or remedies of the plaintiff would be ipso facto destroyed merely because of its tender of the goods in an effort to obtain a compliance with the terras of the contract. Such act on his part was wholly nugatory in
. The ruling in the instant case is not in conflict with what was held in Phillips-Jones Co. v. Blackstock, 23 Ga. App. 574, 576 (99 S. E. 48, 49). There, after delivery to the carrier, the plaintiff, in ordering the return of the goods to its factory from the place of destination, lost a part of them in transit, and its evidence failed to disclose what portion was lost and what remained, so that, as was there said, “ The evidence thus 'fails to prove the case as laid, in that it shows that at least a portion of the goods as ordered is not now, and was not at the time the suit was instituted, stored for the vendee.”
Judgment affirmed.