21 Ga. App. 723 | Ga. Ct. App. | 1918
A written contract for the sale of a soda fountain and accessories was made between Green & Sons and H. C. Tuggle, doing business as H. C. Tuggle Drug Company, the goods were shipped in accordance with the contract, and on arrival at destination were declined by the purchaser, and the sellers brought suit under § 4131 of the Civil Code (1910) for the entire purchase-price thereof. The petition in part alleged: “4. That your petitioners according to the terms of said contract thereupon stored said soda fountain for the use of H. C. Tuggle, 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 petitioner 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 Mountain to Atlanta and drayage at Atlanta $8.11. Also they paid out $2.00 for storage of said fountain for the first month, beginning January 5th, 1916, and will have to pay out $2.00 for each additional month of storage.” Under these allegations, which were denied by the plea, it is a condition precedent to any recovery that the proof show that the goods were stored for the vendee. Oklahoma Vinegar Co. v. Garter, 116 Ga. 140 (2), 146 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (4), 740, 741 (56 S. E. 1030); Georgia Agricultural Works v. Price, 11 Ga. App. 80 (1), 82 (74 S. E. 718); Southern Flour &c. Co. v. St. Louis Grain Co., 11 Ga. App. 403 (75 S. E. 439). And to recover for freight, storage, and drayage, the proof must show that these specific items of expense were incurred.
Before suit can legally be brought for the entire purchase-price of goods shipped by common carrier as in this case,, the seller must
When the goods in this case were shipped, the bill of lading, with a draft for the purchase-price attached, was sent to a bank at Stone Mountain, with instructions to the bank to have a certain conditional-sale contract, which was sent to the bank with the draft, “properly signed, witnessed, and acknowledged, and lodged for record at least one day before delivery of B/L.” All of this indicated the unequivocal intention of the sellers to retain title to the goods until payment of the draft. Georgia, Fla. & Ala. Ry. Co. V. Blish Milling Co., 15 Ga. App. 143 (3), 147 (83 S. E. 784); Cartersville Grocery Co. v. Rowland, 17 Ga. App. 43 (86 S. E. 403); Ware v. Chason, 14 Ga. App. 47 (80 S. E. 31); Southern Railway Co. v. Strozier, 10 Ga. App. 159 (73 S. E. 43); Delgado Mills v. Georgia R. &c. Co., 144 Ga. 175 (3) (86 S. E. 550); Civil Code (1910), § 4134. “It is well settled that when the seller of personal property takes from the carrier a bill of lading therefor to his own order, and attaches it to a draft drawn on the buyer, this is. a declaration on the part of the seller that he does not part with the title to the goods shipped, but retains the title until the draft which is sent with the bill of lading is accepted
The agreed statement of facts not showing that title to the property had passed to the purchaser, or that the goods had been stored for his use, the sellers could not recover the full purchase-price, and, there being no evidence as to the amount of freight, storage, and drayage paid, the plaintiffs failed to prove their case as laid, the court erred in directing a verdict, and the judgment must be
Reversed.