110 Ga. 392 | Ga. | 1900
Harden purchased from Lang certain machinery. The contract between them is embodied in an order of which the following is a copy:
“Louisville, Georgia, July 31, 1897. S. G. Lang, Sanders-ville, Georgia. Please ship as early as possible the following described machinery: One 8 H. P. portable Ajax engine, mounted on four iron wheels, speeded to 225 small pulley 30 by 8, Pemberta injector, one sixtv-saw Pratt gin, with condenser, Driving pulley 16 by 9; for which I agree to pay the sum of . ., one half October 15th, 1897, one half October 1st, 1898. Last note to draw 8% interest from September 1st. Ship condenser only to Keyesville, Ga. F. O. B. Waynesboro, Ga. This order is made with the distinct understanding that the title to the said property is to remain in ■ the said S. G. Lang until the purchase-money to said property and all other*393 expenses incurred in the collection of the same shall be folly paid, and hereby agree to sign and execute all notes, as per contract above, upon arrival of machinery, and it is understood that these notes shall embody the abov.e understanding. Ship released, and insure, if by water. This contract covers, my understanding in full, and there exists no verbal agreement. To be delivered by September 1st, 1897. . Shipping point Waynesboro. Post-office, Oats, Ga. R. A. Harden.”
All the machinery was delivered, and received by Harden, according to contract, except the cotton-gin, which -was promised to follow the shipment of the other articles in a few days. On the 23 d of September, finding that his efforts to obtain the the gin were unavailing, Harden purchased another gin and telegraphed that fact to the defendant in error; in consequence of which the gin originally contracted for was never shipped. Harden put in place and used, the machinery which he purchased from Lang in connection with the gin which he procured elsewhere, and the same was in his possession and being so used, ■when the first of the notes became due under the contract. The defendant in error requested Harden to pay him the value ■of the machinery which he had received. This Harden de^ dined to do. He then instituted an action of trover to recover, the engine, fixtures, and other machinery which Harden so received. To this action Harden filed several pleas, among them one to the effect that, by reason of the failure of Lang to ship the gin, the reservation of title to the other property named in the contract became null and void, and therefore Lang was not entitled to recover. He further averred that the contract was an entire one; that he purchased the machinery as a plant to establish a cotton-ginnery, with the, object of ginning not only his own cotton but that of the public generally, all of which was well known to Lang; that anticipating the prompt delivery of the machinery, he had entered into contracts with various' farmers to gin their cotton for a consideration of $1.50 per bale, all of which he lost by the failure to deliver the gin. Other items of damage resulting from such failure were also set forth, all of which he pleaded in the nature of recoupment against the plaintiff’s action. The court sustained a demurrer to a part
Now, as to the facts of the present case, we find that Harden not only did not return or offer to return the machinery which he had received, but that he retained it and put it in operation in connection with a cotton-gin which he obtained in lieu of the one Lang had agreed to deliver. Atore than that, on September 23, he telegraphed the fact to Lang that he had purchased a gin elsewhere. The evident meaning of this notification was that Lang need not deliver the gin which was originally embraced in the contract; and while the necessity for the procurement of another gin was undoubtedly caused by the fact that Lang failed to comply with his contract and ship him a cotton-gin, this notification in effect operated as a waiver of the obligation that Lang should thereafter deliver the gin. So that, by the failure to return the machinery which he had already received and the appropriation of it to his own use, as well as by the waiver, it must be held, as a matter of law, that Harden did not elect to rescind; and it follows that, as to the machinery which he received and kept, his rights are to be governed by the terms of the original contract. It would not at all bo in accordance with the law governing contracts to hold that, as Harden received the machinery under a particular contract which had been broken by the seller, he could retain possession and use that portion received by him, with no other liability than being under an equitable obligation to pay its value, when the contract he had entered into'declared that he should have no title until he had paid for it, because, having, when the ’ breach occurred, different and distinct rights, he elected not to return the machinery but to keep it as his property. It was delivered to him under a particular contract, and in law he must receive it under that contract or not at all. But if he did receive it and keep it, then the terms of the contract became operative as to what he did receive. By that con
In the case of Barrow v. Mallory, 89 Ga. 76, this court ruled that, “ In an action of trover, unless there be some special equitable ground (such as non-residence or insolvency of the plaintiff) for allowing the defence, the damages sustained by the defendant from a breach of contract by the plaintiff are not the subject-matter of set-off, and can not be so pleaded.” And Mr. Pomeroy, in his Code Remedies, § 767, in reaching a conclusion on this subject, practically announces the same rule in the following language: “ It would seem that, in an action to recover the possession of specific chattels, no counter-claim is possible, unless, perhaps, equitable relief may be awarded under some very exceptional circumstances.” See also 11 L. R. A., note on page 257; Oreen v. Combs, 81 Ga. 210; Smith v. Printup, 59 Ga. 610. This rule, so clearly founded on principle, must not be confused with that announced by this court in several cases where actions were brought to recover personal property when title was reserved in the seller until the purchase-price
Judgment affirmed.