1. Where the vendee refuses to take and pay for goods purchased from the vendor, the vendor may sell the property, "acting for this purpose as agent of the vendee, and recover the difference between the contract price and the price on resale." However, before the vendee will be liable for such difference, it must appear that he was notified of the vendor's intention to sell the property. A petition which fails to allege such notice of intention to sell on the part of the vendor is subject to demurrer.

2. Where the vendor seeks to recover the difference between the contract price and the price obtained upon a resale of the property as agent for the vendee, the vendor is not entitled to recover from the vendee expenses *Page 210 incurred in making the resale, such as freight, storage, and commission paid to the agent making the resale.

DECIDED JUNE 29, 1940. ADHERED TO ON REHEARING, JULY 31, 1940. Acorn Refining Company brought suit against Tybee Amusement Company, to recover $222 as damages resulting from the defendant's refusal to accept a shipment of goods ordered by it. It was alleged in the petition that the sum sued for represented loss incurred by the plaintiff in the commission paid to the agent making the sale of the goods, in storage which the plaintiff paid on the goods in Savannah after the defendant's refusal to accept delivery of them, in freight paid on the shipment, and the loss sustained as a result of a resale of the goods to Mebane Royal Company of Mebane, North Carolina. The defendant demurred generally and specially on the grounds, that the petition was "vague, indefinite, and lacking in particularity," that it did not set forth the exact terms and conditions of the order, and "that the allegation `the said defendant refused to accept [the shipment] for no reason whatsoever' is a conclusion of the pleader, without any facts alleged to support same;" that the date of payment of the commission to the agent is not alleged, or the manner in which the commission was computed; that the dates and place of storage or to whom the $74 storage charge was paid, and the date of payment, are not alleged; and that the date of the resale to the Mebane Royal Company is not alleged; that it did not appear that the plaintiff resold the merchandise at the defendant's risk, or that the defendant received notice of the intention to resell for the defendant's account and to act as its agent, and that the defendant would be held liable for the difference between the alleged contract price and the alleged price on resale; and that it did not appear from the petition that the plaintiff, on the alleged resale of the merchandise, obtained a fair market value, or that the plaintiff used reasonable diligence in an effort to obtain a fair market value, for the merchandise. The plaintiff amended its petition to meet the special demurrer, except the ground as to failure to set out how the commission was computed. The general demurrer was overruled, and so were the special demurrers, except that ground requiring the method of computing the commission to be set out, which was *Page 211 sustained, with leave to amend. To the overruling of the demurrers the defendant excepted. "If a purchaser refuses to take and pay for goods bought, the seller may retain them and recover the difference between the contract price and the market price at the time and place of delivery; or, he may sell the property, acting for this purpose as agent of the vendee, and recover the difference between the contract price and the price on resale; or, he may store or retain the property for the vendee and sue him for the entire price." Code, § 96-113. The Supreme Court, in Felty v.Southern Flour Grain Co., 140 Ga. 332 (78 S.E. 1074), ruled: "If a vendee refused to take and pay for goods bought, one of the remedies given the vendor . . is `he may sell the property, acting for this purpose as agent for the vendee, and recover the difference between the contract price and the price on resale.' However, before the vendee will be liable for such difference, it must appear that he was notified of the vendor's intention to resell at the vendee's risk." See United Roofing c.Co. v. Albany Mill Supply Co., 18 Ga. App. 184 (2 b) (89 S.E. 177); Bennett v. Mann, 24 Ga. App. 581 (101 S.E. 706); Overstreet v. Carmichael Grocery Co.,29 Ga. App. 189 (114 S.E. 714); Bell v. Lamborn, 2 Fed. (2d) 205; Davis Sulphur Ore Co. v. Atlanta GuanoCo., 109 Ga. 607 (34 S.E. 1011); Cartersville GroceryCo. v. Taylor, 31 Ga. App. 252 (120 S.E. 447);Abercrombie v. Georgia Distributing Co., 43 Ga. App. 258 (158 S.E. 530).

The plaintiff is seeking to recover, for defendant's breach of the contract in failing to accept delivery of the goods ordered, damages in the difference between the contract price and the price on resale of the goods by the plaintiff at Mebane, North Carolina, and certain expenses enumerated as incurred by the plaintiff. The plaintiff alleges a breach of the contract; but since the required notice to the defendant of the plaintiff's intention to sell the goods and hold the defendant liable for the difference between the contract price and the price on resale was not given, the plaintiff shows no right to recover the damages as alleged.

The case of Rape v. Rape, 28 Ga. App. 273 (110 S.E. 754), is distinguishable, it appearing that the seller in that case, in effect, *Page 212 was suing for and recovered the difference between the contract price and the market value at the time and place of delivery, and that it was not necessary for the seller to show notice to the purchaser of the intention to resell, notwithstanding the seller alleged in the petition that his damages were the difference between the contract price and the price on resale. The plaintiff is not entitled to recover of the defendant expenses incurred in making the resale, such as freight, storage, and commission paid to the agent making such resale, but, where proper notice has been given, is entitled to recover as damages only the difference between the contract price and the resale price.Sims-McKenzie Grain Co. v. Patterson, 10 Ga. App. 742,744 (73 S.E. 1080); Wilkes v. Madden, 27 Ga. App. 716 (109 S.E. 683); Allison Lumber Co. v. Decatur LumberCo., 30 Ga. App. 613 (118 S.E. 597).

The trial court did not err in overruling the general demurrer, but erred in overruling the special demurrers as indicated above.

Judgment reversed. Sutton and Felton, JJ.,concur.