5 S.E.2d 593 | Ga. Ct. App. | 1939
Lead Opinion
(After stating the foregoing facts.) The direction of the verdict was error, for the reason that there were issues of fact which should have been submitted to a jury. There was no written contract binding ripon the defendant, because she did not sign it, and because no one authorized by her to do so signed it. Friedlander v. Schloss, 43 Ga. App. 646 (4) (159 S. E. 870). Therefore the provision in the contract that the order was not subject to cancellation was not binding on her as a contract. Neither was it notice that the agent did not have authority to contract that the order could be canceled. Ordinarily the duty and authority of a traveling salesman is to take orders subject to acceptance and approval of his principal. Dannenberg Co. v. Hughes, 30 Ga. App. 83 (116 S. E. 892). Under the evidence in this case the jury might or might not have inferred that the agent had the
Judgment reversed.
Lead Opinion
The court erred in directing the verdict for the plaintiff.
M. Silver testified that R. Silver was his wife; that he acted for her in placing the order for the goods in question; that neither the original nor the duplicate order was signed by him or his wife; that he contracted for the goods with A. Silverman; that he did not contract to have the hats "tipped;" that at the time he placed the order Silverman agreed that R. Silver would have the right to cancel the order, and in accordance with this agreement R. Silver *83 did cancel the order by letter produced by the plaintiff in response to a notice; that after the defendant was notified that the claim had been placed in the hands of an attorney for collection, the witness went to the American Railway Express Company to ascertain if the shipment had ever arrived, and was informed by the agent of the express company that the plaintiff had instructed the agent to return the shipment, which the agent did; that it is the custom of the trade that when the right of cancellation is given by the representative, the right can be exercised, and in this instance it was exercised; that the duplicate order identified was a duplicate given to him and left with him by the salesman at the time the order for the hats was given. At the top left of the sheet containing the so-called "order" is the following: "Date sold 4-23-37. Salesman, Silverman. Order acknowledged 5-3. Approved S." At the bottom of the order the following appears: "All claims, etc. Buyer's signature ____." The space for the signature of the buyer was left blank. The duplicate order given to the defendant at the time the order was taken is an exact copy of the original. The defendant wrote to the plaintiff, on July 23, 1937, to cancel the order, which the plaintiff refused to do.
The court directed a verdict for the plaintiff in the amount sued for. The defendant excepted to the overruling of her motion for new trial.
The direction of the verdict was error, for the reason that there were issues of fact which should have been submitted to a jury. There was no written contract binding upon the defendant, because she did not sign it, and because no one authorized by her to do so signed it.Friedlander v. Schloss,
Judgment reversed. Stephens, P. J., and Sutton, J., concur.
Rehearing denied. *85
Rehearing
ON MOTION FOB REHEARING.
The defendant in error very ably and strongly urges that the attempt on the part of Mrs. Silver to cancel the order by letter is an.affirmance and an adoption of a contract. If the salesman had authority to make a complete and binding contract, Ms signature to the order bound the plaintiff; and although the purchaser did not sign the order or contract, under the decisions of our courts the effort to cancel the order in writing would bind her, even though by such writing she sought to cancel the agreement. Capital City Brick Co. v. Atlanta Ice & Coal Co., 5 Ga. App. 436 (63 S. E. 562). On the other hand, if, as is contended by the defendant in error, the salesman had no authority to make a complete contract, but had authority to submit the> offer to buy to his principal for acceptance, in the absence of proof of acceptance and notice to the buyer there was no binding contract, and the effort in writing to cancel the contract was no'mor.e than the withdrawal of the offer before acceptance. It could not be an affirmance of a contract, because it would require acceptance to make the contract complete. In Bush v. American Mills, 28 Ga. App. 324 (111 S. E. 678), there was an acceptance of the offer before the attempt to cancel was made. That fact distinguishes that case from this one. There is no evidence in this case of an express acceptance of the order, and no evidence showing that anything else could or should constitute an acceptance. Certainly, if the plaintiff had not made the hats and had refused to deliver them if it had never accepted the order, it would not be liable for a breach of contract.
B'ehearing denied.