122 Ga. 858 | Ga. | 1905
(After stating the facts.)
, In 12 Encyclopaedia of Laws of England, 405-6, .the following principles, deducible from the English cases, are stated: “ Where there is an agreement for the sale of property at a valuation to be made by persons appointed by the parties, or nominated by the agreement, the making of the valuation according to the terms of the agreement is a condition precedent; and if, by reason of the refusal of either of the parties to appoint a valuer, or to allow his valuer to proceed, or by reason of death, refusal to act, or disagreement of the valuers nominated by the agreement, the valuation is not made in accordance therewith, there is no contract which can be enforced by the court, the vendor not being bound to sell, nor the vendee to purchase, the property at a valuation to be ascertained by the court, or in any other manner than that indicated by the agreement. . . ." The court can not, in such a case, compel a party to appoint a valuer, or to allow a valuer appointed by him to proceed.” The “sale of goods act” of 1893 (56 & 57 Viet. c. 71), which codified the law of England upon the subject of the sale of goods, provided that, “Where it is agreed that- the price shall be fixed by the valuation of a third party, and such third party can not or does not make suc.h valuation, the agreement is avoided; but if in such a case the goods or any part thereof have been delivered to or appropriated by the buyer, he must pay a reasonable price therefor; and if the third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault.” 11 Enc. Laws of Eng. 351.
The petition in the case with which we are dealing can not be construed as an action for the reasonable value of the goods; for the purpose to declare upon and recover under the alleged contract of sale is manifest and clear. Even if it could -be so construed, such a suit would not lie, because as we have seen, there was no delivery, actual or constructive, of the goods by the hardware company to Hawes, nor any intention that the general property therein should pass to Hawes before the stock was taken and valued as the agreement provided.
The suit was not even good for the two dollars which it alleged the defendant received for a wheelbarrow sold from the stock while Owsley and Whiteside wer$ engaged in taking the same, and had retained; for the plaintiff sought to recover this amount from the defendant as a part of the damages alleged to have resulted from the breach of the alleged contract, and not upon an implied contract, as money had and received for the plaintiff’s use. It follows that there was no error in sustaining the demurrer to the petition.
Judgment affirmed.