57 Ga. App. 304 | Ga. Ct. App. | 1938
J. M. High Company filed a petition, in aid of an attachment levied by service of garnishment, against Eed Line Products Company, a non-resident, alleging that the defendant was indebted to it in the sum of $1294.99 for merchandise, the receipt of which was evidenced by a credit memorandum issued under date of May 17, 1932, a copy of which was attached to the petition as exhibit A, in the amount of $1574.93, against which the defendant was entitled to a credit of $279.94, leaving the balance above named due the plaintiff with interest at 7 % per annum from May 17, 1932, all of which the defendant had refused to pay; that contemporaneously with the execution and delivery of the credit memorandum the parties entered into a certain contract, dated April 27, 1932, a copy of which was attached to the petition as exhibit B and made a part thereof, and which provided, among other things, as follows: “Por and in consideration of the purchase of merchandise this day made from the party of the first part by the party of the second part in sufficient amount to consume credit memorandum in full on basis as named below, to be delivered from time to time upon the orders -and specifications of the party of the second part within a period of two years from the date thereof, at the current printed Eed Line Eed List in effect on date order is received by the party of the first part, said party of the first part has this day accepted from the party of the second part, but for credit only on the aforesaid purchase contract, certain salable merchandise of the party of the second part to the amount of $1574.93 as per list attached hereto,
The defendant demurred generally and specially on a number of grounds, and had duly certified and filed its exceptions pendente lite to the judgment of the court in respect to certain grounds which, among others, it overruled, as follows: “Ground 1. Defendant demurs generally to plaintiff’s declaration in attachment as amended upon the ground that said declaration in attachment, neither as a whole nor in any of its several parts, sets forth a cause of action against this defendant. Ground 2. Defendant demurs generally to plaintiff’s declaration in attachment as amended on the ground that the allegations contained therein show that the breach of contract alleged by plaintiff was waived by plaintiff’s acceptance from defendant of merchandise at prices and discounts? different from those set forth in the Bed Line Bed List dated April 1,' 1932. Ground 3. Defendant demurs generally to plaintiff’s declaration in attachment as amended upon the ground that said declaration in attachment as amended does not set forth a cause of action against this defendant, for the reason that nowhere therein does the plaintiff allege that the defendant failed and refused to ship to plaintiff goods ordered from the current printed Bed Line Bed List in effect on the date the plaintiff’s order was received by the defendant. Ground 4. Defendant demurs generally to plaintiff’s declaration in attachment as amended upon the ground that said declaration in attachment as amended does not set forth a cause of action against this defendant, for the reason that plaintiff does not allege any legal grounds justifying its failure to use its full amount of credit within two (2) years from April Z7, 1932, as required by the contract between the parties, exhibit B herein. Ground 5. Defendant demurs to that portion of paragraph six of plaintiff’s declaration in attachment as amended which reads: ‘ . . and expressly represented and agreed with plaintiff that the term “ Current printed Bed Line Bed List in effect on date order is received by the party of the first part” appearing on said contract should refer and did refer to future
The defendant filed an answer, denying that it had committed any breach of the contract and asserting that under its terms the plaintiff’s failure to consume the credit memorandum within the
A trial was had before a judge of the municipal court of Atlanta without the aid of a jury, and judgment was rendered for the plaintiff for $932.22 principal, $215 interest, and costs. The case is here on bill of exceptions assigning error on the judgment of the court in overruling certain general and special grounds of demurrers as set out in the exceptions pendente lite, the judgment of the court overruling a motion for nonsuit, and the judgment of the court overruling the defendant’s motion for new trial, the grounds of which are not here set out, because, in the view we take of the case, it is controlled by the ruling on the demurrers.
It appears from the petition that on April 27, 1932, the plaintiff and the defendant entered into a written agreement whereby the plaintiff was to purchase merchandise from the defendant within a two-year period, and that under the contract the defendant accepted from the plaintiff certain merchandise at an agreed value for which it was to issue a conditional or qualified “credit memorandum” to the plaintiff. The written contract contemplated that the plaintiff buy from the defendant such a quantity of merchandise that 45 % of the amount purchased would in two years consume the amount of the conditional or qualified “credit memorandum.” The amount of the goods received from the plaintiff being $1574.93, the plaintiff, in order to utilize the total benefits of the credit, would be obliged to buy $3543.40 worth of merchandise from the defendant, because it would require 45 % of that amount to equal the amount of the “ credit memorandum.” Title to the goods delivered to the defendant was to vest immediately in the defendant, and, while the plaintiff might avail itself of the possible, benefits of the “credit memorandum” by making purchases from the defendant and paying only 55 % of the amount of the invoices in cash, applying 45 % of the amount of the invoices against the credit, any part of the amount of $1574.93 not so consumed in two years would be retained by the defendant as
The preceding analysis brings us now to a consideration of the special and general demurrers, the grounds of which have already been set forth in detail. Ground 6(b), which relates to certain allegations of the plaintiff as to ordering from the defendant’s Eed Line Eed List and receiving proper discounts before the list was reduced on September 19, 1932, to- 66 items is apparently abandoned and not insisted on by the plaintiff in error. Grounds 5, 6(c), and 11(b) relate to allegations of the petition in which the plaintiff seeks to show that at the time of the negotiations certain representations were made by the defendant as to the meaning of the term “current printed Eed Line Eed List in effect on
Ground 7 of the special demurrers was also improperly overruled. The portion of paragraph 9 which it/attacked did not allege that any current Red Line Red List in effect on March 23, 1933, contained the articles ordered by the plaintiff, but shows that the claimed right to purchase the specific goods was- by virtue of the original list which, as we have seen, the defendant was not bound to maintain to March 23, 1933, and, as elsewhere shown in the petition, the defendant /iad in fact reduced the list to 66 items on September 19, 1932.
Stripped of the allegations attacked by the special demurrers, the petition merely shows the terms of the written contract which provided for a change of lists, and shows that the plaintiff ordered goods from the current Red Line Red List in such an amount that 45 % of the invoices, when applied against the “credit memorandum,” amounted to only $279.94, leaving an unconsumed balance of $1294.99. It follows that the plaintiff did not perform as required by the written contract, and that under its terms the balance remaining on the conditional credit was not available-to the plaintiff but was forfeited to the defendant. No cause of action was set forth, and the trial court erred in overruling the general demurrer, and as all proceedings thereafter were nugatory it is unnecessary to pass on other assignments of etror.
Judgment reversed.