58 Ga. App. 320 | Ga. Ct. App. | 1938
Lead Opinion
E. Frederics Inc. filed suit in Fulton superior court against Felton Beauty Supply Company Inc., upon an open account in the sum of $2886.40 principal, $380.91, interest. The account represented certain beauty-shop supplies sold by the plaintiff, a manufacturer, to the defendant a jobber. The defendant answered, setting up a counter-claim for damages in the sum of $50,000. The answer set up substantially that the defendant "is engaged in the selling of beauty-shop equipment and supplies, engaged as a jobber in said business, buying its merchandise from manufacturers, and selling such merchandise direct to the beauty-shop owners; that the plaintiff herein is a manufacturer of equipment and supplies used by beauty shops, and do not sell direct to such beauty shops, but sell to jobbers, similar to that of this defendant, and such jobbers, in turn, sell direct to the beauty shops; that this defendant has, for the past five years, been doing business with this plaintiff, buying the products of this plaintiff, and in turn selling such products direct to beauty shops in the State of Georgia, and surrounding territory;” that during
The contract referred to provided in part as follows: “The party of the second part [defendant] shall be and is hereby des
We will not attempt to set out in detail the evidence produced at the trial, for it is quite voluminous. The counter-claim of the defendant rests upon a written contract alleged to have been executed between the parties. The material circumstances leading up to the alleged execution of this contract were as follows: As alleged, it appeared that the defendant had for about five years handled and sold products manufactured by the plaintiff. In the fall of 1934 the plaintiff and the defendant entered into negotiations looking toward the appointment of the defendant as exclusive distributor of the plaintiff’s products for the State of Georgia. Theretofore J. M. Kline Company competed with the defendant in the sale of these products. In December, 1934, W. S. Felton, president of the defendant corporation, was in New York City, the principal place of business of the plaintiff, and first talked with Mr. Max Feder, sales manager of the plaintiff corporation, with regard to such a contract. No definite agreement was entered into at this time. Felton left New York “expecting to have this contract,” and shortly after his return he wrote to the plaintiff, in part, as follows: “Upon my arrival from New York City, I looked for a copy of the letter which you were to have written to the J. M. Kline Co. and Hoffman Schooley Co., I did not find same, nor did I hear from you at this writing concerning the proposition we talked about while I was in New York City. I refer particularly to the arrangement for the coming year which called for 72 machines and 72 dryers, 12 vaporizers and 500,000 pads, to be purchased by us, during the year 1935, subject, of course, to some final arrangements being made. Will you kindly let me hear from you by return mail, regarding these two matters?” Felton testified: “This letter of January 2d was written by me to Mr. Feder, to remind him that he had not done as he promised when I was in New York, to write to J. M. Kline and Hoffman Schooley Company, in Florida that they could no longer secure Frederics’ merchandise, in view of the fact that we
Mr. Feder came to Atlanta, further negotiations were had, and he promised Felton that he would have the proposed contract ready for him to sign by January 23. On January 25, Felton wrote to the plaintiff, in part, as follows: “You will no doubt recall that we were to have heard from you regarding the arrangement which we consummated for you in Atlanta recently, on or before Wednesday, January 23rd. At this writing we have not yet heard from you, and we will appreciate a prompt response in.accordance with our arrangements.” On January 31, the defendant telegraphed to the plaintiff as follows: “No reply our letter twenty-fifth, about proposition discussed while in Atlanta. Must have definite answer, as we are planning show March 18th, 19th, and 20th stop. Please telegraph answer, as we are holding up all our plans pending final arrangements with your company.” The plaintiff responded on the same date, in part as follows: “Referring to your telegram of even date, please be advised that you will get a definite answer on this proposition by Tuesday, February 5th.” On February 7, the plaintiff wrote to the defendant as follows: “Please excuse the delay in answering your letter and telegrams. I know that I promised you an answer on Tuesday, February 5th, but it was the consensus of the entire outfit to think twice before we make an attempt to definitely go through with our proposition with you. We are therefore taking this initial means of informing you that we have definitely decided to accept your proposition, and we would very much like to have this proposition all settled and become effective by February 10th. The purchase figures for this
On February 15, the plaintiff wrote the defendant, declining to reduce the merchandise to the number requested by the plaintiff, but enclosing a proposed contract for execution by the defendant, calling for a purchase of “72 machines, 72 hair-dryers, 12 vaporizers, 500,000 supplies.” The entire contents of this letter do not appear in the record. On February 21, the plaintiff telegraphed the defendant, in reference thereto, as follows: “Must have contracts returned immediately properly signed must reach us to-morrow so that we can go ahead with our sales plan advise by wire your acceptance of contracts and also that same are being returned air mail advise about’ show what hotel and who is going to exhibit.” On February 22, the defendant answered, in part, as follows: “This will acknowledge receipt of your letter of the 15th and your telegraphic communication of the 21st. . . We wish to state that the agreement, as it was drawn up, was certainly not definite as it should have been, nor was it clearly written. We were therefore compelled to have our attorney rewrite same, máking a few minor changes, which we know will meet with your approval. We are enclosing herewith the contracts as they should be. ’ . ' ; It is suggested that the agreement be rewritten. . . Will you, therefore, have the agreement rewritten, in accordance with our copies herewith attached, making the necessary changes in the amounts of machines, dryers, and’ vaporizers, and all the provisions about the co-operation we will receive from your company. Inasmuch as two months of this year have already elapsed, the term of the agreement should be from March 1, 1935, to February 29, 1936. As soon as you have rewritten the agreement, .you will kindly forward the copies to us at once, and if after being found correct, we will rettirn them to you.” On February 27, the plaintiff, in answer to the above letter, wrote as follows: “Tours of the 22nd at hand’, and contents have been noted with interest. In reference to the agreements, we would state that on the minor changes we can agree to some of them, but the others we definitely have to exclude. In reference to the demonstration and instructions, what we mean by the demonstration is there should be at least one big demonstration once a month in Atlanta and in Charlotte under your auspices. The incorporating of the 52 weeks
Felton, president of the defendant corporation, testified that on March 1, he dictated and had mailed, properly addressed and stamped, the following letter to the plaintiff: “We are herewith enclosing your copy of the agreement made between your company and ourselves, which you will find properly executed. We feel certain that you will see fit to co-operate with us by modifying this agreement as previously requested.” He further testified that he enclosed in this letter the original contract mailed to him on February 15. Also: “My signature was attached to the contract after Mr. Dwyer’s signature was attached to the contract, after Mr. Dwyer’s signature was already on there. When the contract came to me it had attached the signature that it now purports to
Only headnotes 1 through 6 will be enlarged upon.
Under the Code, § 20-114, one making by mail an offer requiring only acceptance to create a valid contract, without stating how the acceptance shall be communicated, adopts the mails as his agency, and authorizes transmission of the acceptance by mail, and the contract is complete on deposit of the acceptance in the mail; and this is true though it is never received by the offeror. Rowntree v. Bush, 28 Ga. App. 376 (111 S. E. 217); Levy v. Cohen, 4 Ga. 1 (2); Bryant v. Booze, 55 Ga. 438 (5). Under this principle the evidence authorized a finding by the jury that there was a binding contract between the parties, regardless of whether or not the plaintiff received it. It is earnestly contended by counsel for the plaintiff that this principle has no application in the present case, for the evidence shows without dispute that the plaintiff requested consummation of the contract in person and that it was handled by correspondence upon the suggestion of the defendant. It is insisted that the defendant thereby adopted the mail as its agent, and that the contract was not binding until actually received by the plaintiff. This position is clearly without merit. Since, in order to make a valid and binding contract, it is necessary that there be a “meeting of the minds” of the parties, the theory of the law is that the mail becomes, by express or implied agreement to use the mail to consummate the contract, the agent of both parties. It can make no material difference that the defendant first suggested the use of the mail to consummate the contract, the important feature is that the plaintiff agreed thereto, by sending the defendant a contract through the mail which only required execution by the defendant to make it a completed contract. When, under such circumstances, the defendant actually executed the contract and placed it in the mail, properly addressed, it became binding from that moment.
It is true that “An offer, to constitute a contract, must be one which is intended of itself to create legal relations on acceptance; and if it is an offer merely to open negotiations which may ultimately result in a contract, it is not binding.” 6 R. C. L. 600. This, however, has no bearing on the present case; for the offer here consisted of a written contract complete in all of its pro
Where an offer to contract is made, it is the general rule that the offer may be withdrawn at any time before it has been accepted by the offeree. If this be done, no binding contract arises. So also, where the person to whom the offer is made objects to the contract, and suggests that another contract be executed, this amounts to a rejection of the original offer, and such person can not thereafter create a binding contract by accepting the same. However, if the party who made the original offer thereafter renews the same offer, the contract becomes a binding agreement upon acceptance by the offeree. Felton, as president of the defendant corporation, expressly rejected the contract sued on when first mailed to him. He even went so far as to have his own attorney draw up a contract which cured his objections to the original agreement. If nothing else appeared except that afterwards he accepted the contract by executing it and placing it in the mail, properly stamped and addressed, there would be as a matter of law no binding contract between the parties, unless the plaintiff upon receipt thereof assented thereto. However, there appears the plaintiff’s letter of February 27, which is subject to the construction that the plaintiff was renewing its original offer and requesting the defendant to.sign the same “pronto,” and agreeing that it would subsequently execute an agreement modifying this con
However, we think it is important to determine whether there was sufficient evidence to authorize a finding that the plaintiff actually did not receive the contract, in order to properly adjudicate the legal effect of the letters dated March 2 and 4, quoted above. Where it is shown that a letter Avas written and duly mailed, properly addressed, this creates a presumption that it was received by the addressee. Saunders v. Hudson, 30 Ga. App. 732 (119 S. E. 535); Home Insurance Co. v. Head, 36 Ga. App. 779 (138 S. E. 275); Lowenstein v. Johnston, 23 Ga. App. 261 (98 S. E. 111); Georgia Land Co. v. Davis, 28 Ga. App. 398 (111 S. E. 219); Arnold v. Darby, 49 Ga. App. 629 (176 S. E. 914). This presumption is not conclusive, and is rebutted by uncontradicted and unimpeached evidence that the letter was not received. Cassel v. Randall, 10 Ga. App. 587 (73 S. E. 858); Strauss v. Pearlman, 15 Ga. App. 86 (82 S. E. 578); Citizens Banking Co. v. Tootle, 17 Ga. App. 692 (87 S. E. 1098). This arises out of the application of the oft-stated principle that "A fact can not be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable, and unimpeached testimony that the fact does not exist.” Neill v. Hill, 32 Ga. App. 381 (123 S. E. 30), and cit. The defendant raised the presumption that the contract sued on in the cross-action was received by the plaintiff, by Felton testifying that he enclosed the same in a letter properly addressed and stamped, which was duly deposited in the mail'. The plaintiff, however, introduced the testimony of its general manager and vice-president, its secretary, and its attorney, that the letter was not received. Whether or not other evidence was introduced which tended to show the receipt of the contract, to sustain the presumption thus raised, and whether there was sufficient eWdenee going to the credibility of these witnesses to authorize the jury to disbelieve their testimony, we do not now decide. Suffice
First, let us consider the legal effect of these letters as if the defendant actually received the contract executed and -mailed on March 1. The contract had become binding upon being placed in the mail by the defendant, properly executed; and we do not think that the letters had the effect of abrogating the contract thus sent and received. The plaintiff had the right to insist upon it, and it could only be rescinded by mutual agreement. The letters indicated to the plaintiff either that the contract received was a forgery —mistake—or that the defendant had forgotten the execution of the contract. The receipt of the contract and then the receipt of these letters certainly presented a confusing state of facts. In such circumstances, we do not think that an estoppel would arise against the defendant, where the plaintiff changed its position by thereafter executing the same contract with another, without using ordinary diligence to ascertain the truth. Under such circumstances it is obvious that the plaintiff could have ascertained the real truth of' the transaction by merely communicating with the defendant; and we think that under such circumstances it was its duty so to do. However, let us review the case as if the defendant did not receive the contract. The communication of March 2, as pointed out above, was clearly a rejection of the contract forwarded to the defendant on February 15, and the one which is now sued on.
In Rice v. Caudle, 71 Ga. 605, it was said: “In a suit for compensation, growing out of the breach of a contract under which the plaintiff claimed the exclusive right to sell certain goods at a given price in a designated territory, and in violation of which others were employed to do the work without his consent, when he was ready and willing to carry out his contract, the measure of damages would be the difference between the cost of doing the work and the price to be paid for it; that is, the profits of the enterprise, after deducting the legitimate and actual cost of its execution.” In Walker v. Jenkins, 32 Ga. App. 238, it appeared that the defendant entered with the plaintiff into a contract whereby it was agreed that.the plaintiff should sell the products manufactured by the defendant in a named territory for one year, at a stated commission upon all orders sent in. The plaintiff brought suit, alleging that the defendant, approximately seven months after the execution of this agreement, breached the same by refusing to allow him to complete the agreement. The petition contained allegations of the amount of sales made by the plaintiff during the seven months he worked under the contract. “Where a contract of the character set forth in the statement of facts is breached by the employer, and the salesman sued for damages alleged to consist in the loss of profits which he would have earned directly under the contract but for its breach, the petition will be held good on demurrer if it furnishes reasonable data for computation, and if the loss is such as must have been within the contemplation of the parties when entering the contract. Damages which are the legal and natural result of the breach are not neces
Again, in American Agricultural Chemical Co. v. Rhodes, 139 Ga. 495 (77 S. E. 582), it was said: “Where a dealer in fertilizers contracts with a salesman to sell his goods within a designated territory for a given term, and that the salesman shall receive as his commission a certain sum on the number of tons sold, reserving the right to the dealer to pass upon the credit of the customers procured by the salesman, and also upon the amount of tonnage to be sold in that territory, and where the salesman on the. faith of such contract and in pursuance of its execution-solicits orders for fertilizers and is discharged without cause, the dealer is liable
The cross-petition in the present case sought to recover profits
While it is true that parol evidence is not admissible to alter the plain and unambiguous terms of a written contract (Code, § 38-501), yet “All contemporaneous writings shall be admissible to explain each other; and parol evidence shall be admissible to explain all ambiguities, both latent and patent.” § 38-502. The contract in question provided that the defendant was thereby appointed “exclusive selling and distributing jobber” of the plaintiff in and for the territory of the State of Georgia; and it is contended that the plain and unambiguous meaning of these provisions is that the defendant was to exclusively sell the plaintiff’s products only in the State of Georgia, and that damages for breach of this contract should not be estimated by what the defendant could have sold in other territories. The terms above quoted have no such restricted meaning. The contract provides: “It is also understood and agreed that the appointment and designation of the party of the second part as the exclusive selling and distributing jobber in the territory hereinafter mentioned shall not prevent or in any manner restrict jobbers located in territories other than the territory mentioned and described herein from selling and distributing in said territory the products and equipment of the party of the first part.” The most reasonable construction of these terms, when construed with the other parts of the contract, is that the defendant thereunder was to be the only jobber resident in the State handling plaintiff’s products. We think that it was entirely permissible to show that it was contemplated by the parties that the defendant should solicit and take orders for goods in States other than Georgia, under the contract. This contention of the plaintiff is without merit.
Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
Counsel for the defendant in error (hereafter referred to as defendant) takes exceptions only to that part of the opinion containing a ruling adverse to him. It is insisted that we have erroneously applied the principle of estoppel against the defendant, under the facts presented. It is argued that two of the essential elements of equitable estoppel failed to appear in the evidence: (1) That there was any intended deception in the letters of March 3 and 4 (hereafter referred to as the letters), and (3)