150 Ga. 361 | Ga. | 1920
Of course, the decision of the Court of Appeals, when it was first before that court (Tuggle v. Green, 21 Ga. App. 723, 94 S. E. 908), included in the foregoing statement, is the law of the case, and, as between the parties, is conclusive upon all points there presented and decided. Western & Atlantic R. Co. v. Bank, 125 Ga. 489 (54 S. E. 621); Southern Bell Tel. Co. v. Glawson, 140 Ga. 507 (79 S. E. 136); Morrison v. Slaton, 148 Ga. 294, 297 (96 S. E. 452). The answers to the questions certified depend, therefore, upon what was then decided by the Court of Appeals. The headnote, prepared by the court, to the opinion rendered is as follows: “ Before suit against the purchaser for the entire purchase-price of goods shipped by common carrier, as in this case, can be maintained by the seller, title must be relinquished by the seller and must pass to the purchaser. The seller can not retain the goods and also recover the full price.” In the opinion it is said: “ Where the contract is that the defendant is to make a partial cash payment and give notes for the balance, the seller retaining the title until the full purchase-price paid, a tender on terms of the buyer’s compliance with the contract will not have the effect of transferring the title to the buyer. If the buyer refuses to make the partial cash payment, and give notes as called for by the terms of the sale, or to accept any possession or control of the property,, no title passes to him, and the seller’s remedy is not for the purchase-price of the chattel, but for the breach of the contract.” This language is taken from Bridges v. McFarland, 143 Ga. 581, 583 (85 S. E. 856), which is cited, as well as Dilman v. Patterson Produce Co., 2 Ga. App. 213 (58 S. E. 365), and Tufts v. Grewer, 83 Me. 407 (22 Atl. 382).
The opinion of the Court of Appeals, after stating that the purchaser declined to receive the goods upon their arrival at destination, quotes from the petition in the ease as follows: “4. That your petitioners according to the terms of said contract thereupon stored said soda fountain for the use of H. C. Tuggle [the purchaser], notified him thereof, and elected to sue for the entire price, $650.00, less the payment of $32.50 made with the order. 5. That your petitioners paid out for freight on said soda fountain and accessories from Philadelphia to Stone Mountain, and storage at Stone Mountain $43,89, and for freight from Stone
The evidence on the last trial in the superior court showed that the sellers had stored or retained the possession of the property, not for themselves, but for the purchaser, and they therefore had the right, under the contract, to recover for the full purchase-price. The fact that a receipt was issued by the warehouseman with whom the goods were stored to the attorneys for the sellers, and that the goods would not be delivered to the purchaser without an order from such attorneys — the purchaser having been notified of the fact of such storage, — ‘was a full compliance with the contract with reference to the storage or retention of the property by the sellers for use of the purchaser. Otherwise, that is, if the purchaser should have the right to receive the goods from the warehouseman without the payment of the purchase-price, or without the order or consent of the sellers or their attorneys, the provision of the contract as to the retention of the possession of the goods and the storage thereof would deprive the sellers of any control over them, and would enable the purchaser to obtain them without complying' with his contract or making any payment.