Mendel v. Miller & Sons, 126 Ga. 834

Mendel v. Miller & Sons

126 Ga. 834 | Ga. | 1906

Atkinson, J.

(After stating the facts.) 1. When one sells goods to another and the vendee refuses to take and pay for the *837same, the vendor has three remedies. He may retain the goods and recover the difference between the contract price and the market price at the time and place of delivery. He may sell the property, acting for this purpose as the agent of the vendee, and recover the difference between the contract price and the price of resale. Or he may store and retain the goods for the vendee and sue for the entire price. Civil Code, § 3551. If the vendor elects to take the second remedy and resell, due notice of the intention to resell must be given to vendee. It is not necessary that this notice should contain information as to the time and place of sale, but there must be a notice of the intention to sell for the benefit of the vendee. If after such notice a sale is properly made, and the goods bring less than the contract price, the vendee is conclusively bound by the resale and the amount realized by it. Davis Sulphur Ore Co. v. Atlanta Guano Co., 109 Ga. 607. The remedies above referred to, each and all of them, are available even in a case where the goods are shipped to be paid for on delivery, and where payment of a draft is a condition precedent to the delivery of the goods by the carrier to the purchaser. McCord v. Laidley, 87 Ga. 221. See also, in this connection, Seaboard Lumber Co. v. Cornelia Planing Mill Co., 122 Ga. 370. The demurrer was properly overruled.

2. The contract was for the sale of corn of a certain quality. The corn was to be shipped, and to' be paid for before delivery; that is, the vendor retained the title until the corn had been paid for. If the corn was of the quality ordered, the vendee was bound to pay the purchase-price on demand, and accept the corn when offered. There is no conflict in the evidence as to the terms upon which the corn was sold, or as to the quality of corn to be delivered. There is a conflict as to the time of delivery, and also a conflict as to what transpired between the defendant and-the agent of the plaintiff 'after the corn reached Savannah. The agent of the plaintiff testified that the corn was purchased for prompt delivery, which, as explained by him, meant that the corn should be shipped at any time within fifteen days. He also testified that the contract was made under the rules of the Savannah Board of Trade, and one of the rules of that board was that prompt delivery meant shipment and delivery within five days. The defendant testified that the corn was bought for immediate shipment. Hnder the rule of the Savannah Board of Trade, this meant shipment within two days. *838But the defendant denied that the contract was made under the rules of the Board of Trade. There was no special plea setting up that the goods were not promptly shipped, the only special defense pleaded being that the corn which reached Savannah was not of the quality ordered. Under the view we take of the case, it is not necessary to determine whether, under the averments of the petition and the general denial by the answer, the question of whether the failure to ship in due time, as contended by the defendant, was available as a defense. For the purposes of this case, it will be conceded that the corn was shipped in due time. There is little or no conflict in the evidence as to the condition of the corn at the time it reached Savannah, and that it was then of the character and quality ordered. There is also little or no conflict with the evidence that at the time of resale it had deteriorated in value, and that this had been brought about by the fact that it had remained upon the wharf in Sgvannah, subject to the action of the moist atmosphere resulting from proximity to the river and fogs.

If the corn was not of the quality ordered, of course the defendant was not bound .to accept it at any time. If the corn was of the quality ordered, the defendant was bound to accept and pay for it on demand. The plaintiffs had the right, after due notice of nonacceptance, to treat the corn as the property of the vendee, sell it, and charge the vendee with the difference between the contract price and the price of resale. But in order to exercise this right and bind the defendant by the price at resale, it was incumbent upon the plaintiffs to exercise due care in preserving the corn in the condition it was in at the time it reached Savannah, until a resale was made. If the plaintiffs allowed a condition of affairs to continue that would cause a deterioration in the value of the corn, which they could have prevented by the exercise of due care, the defendant could not be held responsible for the deterioration in. value, unless the failure of the plaintiffs to exercise due care resulted from the conduct of the defendant. Whether the corn being allowed to remain on the wharf in Savannah was due to the conduct of the defendant is a question about which the evidence is conflicting. Evidence for the plaintiffs authorized a finding that the defendant, upon notice that the corn had arrived in Savannah, asked for a delay of a few days before paying the draft and accepting the corn, and that the defendant’s conduct was such, from time *839to time, as to leave the impression that the draft might be paid any day and the corn accepted. The defendant denied that he was responsible at all for the delay 'in removing the corn from the wharf. The jury were authorized to find, as stated, that the delay in removing the corn was due to the dilatory method adopted by the defendant in reference to the payment of the draft. If this is the truth of the case, it would not lie in the mouth of the defendant to claim that he should not be charged upon the basis of the value of the corn at the time it was received in Savannah, when the delay and deterioration were the direct results of his conduct. On the other hand, if the ease was that the defendant promptly refused to accept the corn and the failure to remove it from the wharf resulted in its deterioration in value, the defendant would not be responsible for this deterioration, if it should appear that the plaintiffs in the exercise of ordinary diligence should have removed it to a place of deposit where such deterioration would not have taken place. The defendant may have given an untenable reason for refusing the corn, — that is, that the corn was not shipped promptly; but without reference to this, pending the period that elapsed from the time the corn reached Savannah to the date of resale, the vendor was under obligation to exercise due care in the preservation of the corn until it could be resold. We do not think that the charge of the court distinctly submitted this issue to the jury, and some of the exceptions to the charge as given were well taken, for the reason that the instructions as given excluded this issue from the consideration of the jury.

3. Some of the instructions of the judge which are assigned as error submitted to the jury the question of delivery in cases of sale, explaining the difference between actual and constructive delivery, etc. We have been unable to find any evidence which authorized the submission of this issue to the jury. There was no delivery, either actual or constructive, as we apprehend the evidence. It is true that there was a rule of the Savannah Board of Trade, which was in evidence, as follows: “Number of lay days allowed after arrival of goods before rejecting or accepting, five days after being discharged from car or vessel as case may be." But we do not think it a proper construction of this rule that a delay of more than five days before accepting or rejecting would, after a lapse of that time, amount to a constructive delivery of the goods.

*840Other portions of the charge upon which error was assigned contained instructions upon what would be the law in the event that there had been a change of the contract to an ordinary sale of goods. We do not see any evidence authorizing an instruction upon this subject. As we apprehend the evidence, a jury would not be authorized to find that there had been any change in the terms of the contract. The plaintiff steadfastly maintained its position as a seller of goods with the purchase-price payable before delivery. The defendant, with equal vigor, maintained that he was not bound to receive the goods, because they were not of the quality ordered, and that they were not shipped in due time. In addition to this, there was nothing in the plaintiff’s petition to authorize a recovery on any other theory than that the goods were shipped with title reserved, purchase-price to be paid on demand before delivery. The submission of these two issues to the jury, which it seems to us was entirely unauthorized by the evidence, was prejudicial to the defendant, and a reversal of the judgment must result. In reference to those assignments of error which complain of the judge allowing certain evidence in rebuttal, which should have been offered in chief, we only have to say that these fall within the rule that the judgment will not be reversed on this ground, unless a manifest abuse of discretion appears, which is not true in this case.

Judgment reversed.

All the Justices concur.