Perper v. Marks

39 S.E.2d 588 | Ga. Ct. App. | 1946

1. The evidence authorized the verdict on the question whether the contract as alleged by the plaintiff as to the twenty-four dresses was made with the defendant and performed by the plaintiff.

2. The question involved was not whether the performance of the whole of an admitted contract was accepted by the defendant by reason of his accepting some of the goods ordered under it. The question was whether the part of the contract contended for by the plaintiff was made and performed by the plaintiff as alleged. The court properly submitted the case to the jury.

3. There was no error in the charge on the burden of proof.

DECIDED OCTOBER 3, 1946. Dalton E. Perper sued Leo M. Marks, alleging that he sold the defendant goods as per invoice attached for the sum of $370.50 of which $112.50 had been paid, leaving a balance of $258 principal. The invoice showed thirty blouses at $3.75, totaling $112.50, and twenty-four dresses at $10.75, totaling $258. The defendant denied the separate paragraphs of the petition except the one alleging jurisdiction of the court. The jury found for the defendant. The exception here is to the judgment of the Appellate Division of the Civil Court of Fulton County which affirmed the judgment of the trial court overruling the motion for a new trial. 1. There is only one question of fact to be decided in this case. The defendant admitted buying the thirty blouses for which he had paid. The plaintiff contended that an agent of the defendant ordered the blouses and twenty-four dresses; that the agent ordered twenty-four soldier-blue dresses for which navy-blue dresses were to be shipped if available. The defendant contended that his agent ordered twenty-four dresses in assorted colors and that only navy-blue dresses were shipped and he refused to accept them. The evidence was in direct conflict and the jury was authorized to find that the contract was for assorted colors.

2. The plaintiff contends that a verdict was demanded for him and that the court erred in not applying the law of entire contracts. There is no merit in these contentions because the defendant denied that the contract sued on was made as the plaintiff contended. It is not a case where the contract sued on or set up as a basis for recovery was admitted and where the plaintiff failed to perform it as a whole as made or where there was a breach of warranty by the plaintiff. Under the jury's finding the only contract made was for the blouses and the twenty-four dresses of assorted colors. The contract was performed by the plaintiff as to the blouses, but not as to the dresses. The failure to ship the dresses in assorted colors was a breach of the contract as found by the jury and not a mere breach of warranty as the colors were an express, primary term of the contract.

3. The court did not err in charging that the burden of proof was on the plaintiff. The petition alleged that the plaintiff sold the defendant certain goods and the defendant denied the allegation. There was no plea of confession and avoidance or any affirmative defense.

The appellate division did not err in affirming the trial court's judgment overruling the motion for a new trial.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.