49 Ga. App. 840 | Ga. Ct. App. | 1934
Lead Opinion
The Electric Paint & Varnish Company brought suit against J. S. Lunsford, for the recovery of the contract price
The defendant’s counsel in his brief filed in this court says: “The defendant does not claim rescission. He contends that until the executory contract had been accepted in one of the ways known to the law, he had a right to breach or cancel the contract.” He here cites authorities, and continues: “It follows from the facts
Upon the second trial, which is the one now under review, the judge in his charge referred to the instrument as a “contract,” and submitted to the jury the issues only as to whether there had been a breach of the contract.
Even if the defendant’s plea should be construed as setting out the defense that no contract existed, but that the order which the defendant signed and transmitted to the plaintiff constituted only an offer to buy the goods, and which could not become a contract until accepted by the plaintiff, and that the defendant had withdrawn the offer before acceptance, the defendant’s plea contained two defenses, — one based upon the theory that there was a contract, and the other upon the theory that there was not a contract. Where the court in the charge restricted the jury to a consideration of the defense which is based upon the theory that there was a contract, the situation is as if the court had stricken the defendant’s plea setting up the defense that there was no contract, and had allowed the case to proceed to trial upon the issue made under the plea based upon the theory that there was a contract. Thus the case as presented by the record is one in which the sole defense was based upon the theory that a contract existed. The defendant therefore can not, in this court, under the record as it now exists, insist upon an affirmance of the judgment upon the theory that the evidence was sufficient to authorize the jury to find that no contract existed between the parties because the defendant had withdrawn the offer before the plaintiff had accepted it.
The evidence is undisputed that after the order for the paint, which was dated June 20, 1929, had been signed by the defendant and transmitted to the plaintiff, with a provision therein that it was not subject to cancellation, the defendant, on July 10, mailed a letter to the plaintiff which reads as follows: “Several days ago I gave you an order for two bbls. black spreddon. I have now found that I will be glad to be relieved from having the shipment made. I trust that you will cancel the order at least for the time being, until further notice.” There is evidence that the goods were
It appears from undisputed evidence that the defendant, after having received the goods after his notification to the plaintiff not to ship them, shipped them back to the plaintiff, and that the plaintiff received them and notified the defendant that it was accepting
Since it is conceded in the defendant’s plea, and since the judge submitted the case to the jury upon the assumption that there was a contract between the parties before the goods were actually shipped, the defendant, in refusing to accept the shipment, is liable to the plaintiff either for the contract price or for the difference between the contract price and the market value of the property at the time and place for delivery, according to whether the goods were retained by the plaintiff for the defendant, or appropriated by the plaintiff to its own use. The evidence is undisputed that the plaintiff retained the goods for the benefit of the defendant, after notifying the defendant of this fact.
The plaintiff’s right to recover at the contract price, on retaining or storing the goods for the defendant’s benefit, after the defendant had rejected them, arose when the defendant rejected the goods and the plaintiff notified him that they were held for his benefit. Any subsequent destruction of the property by the defendant’s tortious act would not have the effect of altering the. nature of the plaintiff’s remedy to recover damages measured by the contract price. Whatever right for damages the defendant may have against the plaintiff, arising out of the destruction or deterioration of the property, if it could be asserted by the defendant in defense to a suit by the plaintiff on the contract, would have to be pleaded by way of set-off, recoupment, or counterclaim, as the case may be. The plaintiff after storing the property for the defendant’s benefit is no more than a bailee, and is not an insurer of the property. He is only required to exercise the diligence required of a bailee to preserve the property. Mendel v. Miller, 126 Ga. 834 (56 S. E. 88, 7 L. R.
The letter written by the plaintiff to the defendant more than a year after the plaintiff had notified the defendant that the plaintiff was retaining the property for the defendant’s benefit, in which letter the plaintiff stated that no authority was given to the defendant to return the property, and that the plaintiff had stated that it would not accept the property for credit on the defendant’s account, but was holding the property in storage, subject to the defendant’s order, was properly excluded as being irrelevant and as a self-serving declaration.
Since it appears from uncontradicted evidence that the defendant had entered into a contract to purchase the property, and that upon his refusal to accept delivery the plaintiff had stored it for the defendant’s benefit,, and had notified him to that effect, and the plaintiff, as a matter of law, was entitled to recover the unpaid purchase price, it was error for the court to submit to the jury the issue whether the defendant was liable under the contract, and whether the plaintiff had stored the property for the defendant.
This being the case, a verdict for the plaintiff in the amount of the contract price was as a matter of law demanded.
Judgment reversed.
Dissenting Opinion
dissenting. In my opinion the judgment of the court below should be affirmed. When the case was previously dealt with by this court, it seems to have been merely assumed that the instrument sued on was a contract, and not simply an offer of purchase made to a traveling salesman. The former decision in 46 Ga. App. 536, while assuming that there was a contract, did not undertake to construe the instrument as such. On the second trial it was specifically set forth by the amended plea that the offer signed by the defendant was not a binding contract of purchase and
Moreover, even if there had been a binding contract of purchase and sale, rather than a mere offer to purchase which was to become effective when assented to by the seller either in writing or by the execution of the offer through a shipment of the goods, I think that the course pursued by the seller in this case would be nevertheless erroneous, under the rule stated in Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (4) (56 S. E. 1030), that “when a contract for the sale of goods is still executory on both sides, notice by the purchaser to the seller that he will not accept and pay for the goods amounts to a breach of the contract,” and' that “thereafter the seller can not deliver the goods to a common carrier, consigned to the buyer, and, having done so, treat the contract as executed on his part, by suing the buyer for the purchase price of goods sold and delivered.” If there had been a binding contract of purchase and sale, upon being notified by the purchaser that he had breached the contract, the seller might have pursued any one of the three remedies prescribed by section 4131 of the Civil Code (1910); but if the seller had elected to store the goods for the benefit of the defendant, it would have been under the rights and powers granted by that provision of the Code, which is altogether a different thing from thereafter shipping the goods, as the seller did, in the effort to treat the contract as having been fully executed on its part.