33 Ga. App. 266 | Ga. Ct. App. | 1924
We find no merit in any of the general grounds of the defendants’ motion for a new trial, nor in any special ground except that dealt with in the first three lieadnotes. The facts pertinent to the rulings made therein are as follows: The plaintiff, who was a peach grower, entered into a parol contract with the defendants for the sale to them of three cars of peaches, by the terms of which it was agreed that the defendants would take the next three cars which the plaintiff should have ready for market, at prices per crate specified. The contract as modified by the parties provided that the first car was to be loaded on Saturday, July 7, and “delivered” or “turned over” to the defendants at that time; the second car to be loaded on July 9 and the third and last car on the 10th or 11th of July. Originally it was stipulated that the first car should be “turned over” -to the defendant purchasers on Friday afternoon,
The plaintiff, in the nature of his allegations, can not insist upon an acceptance even of the car which he loaded and attempted to deliver on Saturday. JTe alleges, and sues for, a refusal to accept any of the three ears. See Brunswick Grocery Co. v. Lamar, 116 Ga. 1 (1) (42 S. E. 366).
The contract was an entire one. The plaintiff's acts were in relation to but one of the three cars of peaches contracted for. It
Another defense was that the car offered on Saturday did not contain the relative proportion of the two varieties, specified in the contract. It was a jury question as to whether this defense was sustained.
The foregoing statement is intended to cover the facts as the jury might have found them in favor of the plaintiff. As already indicated, we have deemed it necessary only to state such facts as are pertinent to the point on which we reverse the judgment of the court below, since in other respects it is perfectly clear there was no error.
Judgment reversed.