95 Ga. 423 | Ga. | 1895
B. II. Lowe, doing business under the name of The-Lowe Seed Company, pi-oceeded by attachment against Pitcher & Manda, who were non-residents of this State,, for an alleged indebtedness upon a breach of contract to ship 100 barrels of seed Irish potatoes. The attachment was served by garnishments. While the case was-pending here, Lowe died and his administratrix was made a party in his stead.
1. It appeared from the evidence, that on September' 12th, 1892, one Bussell, a traveling salesman of the defendants, sold to Lowe a bill of seeds of various kinds, including the potatoes, the sale, as to the latter, being conditioned upon the defendants having the same in stock when the order reached them; and it was further-agreed that in case they accepted the order, the potatoes were to be shipped whenever requested by Lowe. After thus concluding the bargain with Lowe, Bussell forwarded to Pitcher & Manda an order signed by himself for the goods he had sold to Lowe, as above stated.. Upon receipt of this order, Pitcher & Manda, on September 15th, sent a communication to Lowe, of which the following is a copy:
“United States Nurseries,
Short Hills, N. J., Sept. 15, 1892.
“Messrs. Pitcher & Manda acknowledge, with thanks,, the receipt of your esteemed order for potatoes through Mr. O. B. Bussell/’
On the 21st of September they also addressed to Lowe a letter, the material portions of which are as follows:
“We are in receipt of your esteemed order for seeds and potatoes through Mr. Bussell; but as we have never-had any previous business, we would thank you to send us addresses to whom you would refer us as to your standing. You will understand that this is always necessary before credit is extended; and trust you will see it in this light and favor us with the necessary information by return of mail.”
“Replying to yours of the 21st inst., we refer you to-any wholesale firm here, Exchange Bank and Merchants-National Bank. The latter is where we do our business. "We also refer you to D. Landreth & Son, Philadelphia;. Johnson, Robbins & Co., Wetherfield, Conn.”
Up to this time there was no intimation whatever from Pitcher & Manda to Lowe that the potatoes he had ordered through Russell were not in stock when the order reached them. The next direct reference to the potates was in a letter dated December 13th, in which Lowe requested Pitcher & Manda to ship certain flower seed which had been ordered on the 12th of September, and added: “Will order the potatoes out later.” It does not appear that the defendants made any reply to this letter, denying their obligation to furnish the potatoes. On December 28th, the plaintiff sent a direct order for the shipment of one half of the potatoes, the first spell of weather that would admit; stating also that he was afraid to have them all shipped at that time, on account of the cold weather then prevailing. In reply to this order, the defendants, on December 31st, addressed a letter to Lowe, claiming that they did not have the-potatoes in stock when the original order reached them, and also claiming that Lowe’s order for the potatoes, had been cancelled in a correspondence which had previously taken place between himself and their firm, with reference to certain onion seeds. In the next division of' this opinion, the correspondence as to the onion seeds will be more particularly noticed, and it will then be made to appear that nothing said therein could, with any sort of fairness, be regarded as a cancellation by Lowe of his order for the potatoes. Leaving this matter out of consideration, therefore, we think, upon the facts stated, that Pitcher & Manda were under a bind
When Pitcher & Manda received the original order from Russell, it was their duty, if they did not have the potatoes.in stock, to immediately notify Lowe of the fact, so that he could make other arrangements to procure them. They not only failed to do this, but, by asking him for references as to his financial standing, to say the’ least, left him strong reason to infer that if the references were satisfactory, his order would be filled. Pie promptly furnished the references, and it does not appear that Pitcher & Manda ever objected to the same as being in the least degree unsatisfactory. By their silence in this respect, they encouraged Lowe to believe that his order for the potatoes had been accepted, and would be filled whenever he so requested. It also appears that they shipped to him other goods included in
“Before shipping the Bermuda onion seed upon your ■order, we write to you to say that Bermuda onion seed is saved in different parts of the world, namely, Cali*428 foniia, Italy, and the Island Teneriffe. That saved in the two former places can be sold at the price you offer us in your order, namely, $1.00 per lb.; but it seldom gives satisfaction, as the change of climate alters the character of the goods, and generally causes disappointment. True Bermuda onion seed can only be procured from the Island of Teneriffe, and that which is sown in Bermuda to produce the true Bermuda onion, comes from this section. This seed cannot be sold anywhere for less than $8.00 per lb., and before filling your order we would acquaint you of this fact. We have a limited quantity of seed on hand, and await your orders before shipping, but would strongly recommend your not serving your customers with the cheaper grade. We are anxious to give satisfaction in your part of the country, and would rather not sell goods at all than to disappoint either you or your customers.”
In response to this letter the plaintiff, under date of October 8th, wrote the following:
“Replying to your favor of the 5th inst., we would say that we only gave the order to your salesman after he had shown us by a letter from you that the onion seed were direct from Bermuda Isles. We want no other; and if you cannot live up to the order as accepted some time ago, we do not want anything as a substitute, and you can cancel our order.
“P. S. Send me by mail of each, so that I may have them tested.”
As already stated, it was contended by the defendants that the letter of the plaintiff last above copied amounted to a cancellation of his entire order of September 12th. We do not think it could possibly admit of such a construction. It seems perfectly clear that this communication related to the onion seeds alone, and had no bearing whatever upon the order for the potatoes. The court, in substance, instructed the jury to this effect, and we hold that so doing was not cause for a new trial.