Atlanta Buggy Co. v. Hess Spring & Axle Co.
| Decision Date | 20 November 1905 |
| Citation | 52 S.E. 613,124 Ga. 338 |
| Parties | ATLANTA BUGGY CO. v. HESS SPRING & AXLE CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a written contract was entered into between a purchaser of certain goods and a person who signed for the seller, which contained a provision that the contract "shall only be considered binding on the seller when signed by one or more of its officers," and it did not appear that it was ever so signed, or that there was any consideration for the promise of the purchaser, except the contemplated mutual obligations to be assumed by the seller, the contract was unilateral. The seller not being bound, neither was the purchaser; and the latter might withdraw from it before it became mutually binding by acceptance in the manner agreed on.
Where the proposed vendor brought suit for breach of such contract against the vendee, and by amendment alleged that the person who signed the contract with the vendee was the agent of the plaintiff, with full power to represent it in making the contract for the articles specified in it, and binding it thereto, and that the contract he made was fully ratified by the plaintiff and accepted by it as binding on it, such amendment did not show that the contract was or ever became one whereby one became bound to sell and the other to buy the specified property. The allegation that the person signing the contract on behalf of the plaintiff was authorized so to do, and that the contract was ratified by the plaintiff, did not change its written terms, but left as one of them that it should not be binding on the seller until signed by one or more of its officers.
Authority to make the contract had reference to it as made, and ratification confirmed it as made. Neither anterior authority nor subsequent ratification would operate to change the terms of the written contract without the knowledge or consent of the other party, and adversely to it.
Two written contracts of a similar character being involved, the fact that under one of them the vendee specified certain articles which he desired, and which were furnished, rendered it binding on the parties to the extent only of the accepted specification.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by the Hess Spring & Axle Company against the Atlanta Buggy Company. There was judgment for plaintiff, and defendant brings error. Reversed.
Smith Hammond & Smith, for plaintiff in error.
Slaton & Phillips, for defendant in error.
It is necessary to consider only one question raised by the demurrer, namely, that it appears that each of the contracts provided that it should "only become binding on the seller when signed by one or more of its officers," that it was without consideration, unless there were mutual promises, and that the seller never made a promise or became bound, and therefore the defendant was not bound. No other consideration moving to the defendant is alleged or insisted on, except that there were mutual promises, and that each contract was binding on both parties. If this were not so then there was no mutuality, and neither would be bound. Under the allegations of the original declaration it is clear that no contract binding on both parties was set forth. Each of the contracts contained the provision above quoted as to when it should become binding on the seller. It is not alleged that it was ever signed by an officer of the seller nor is there any allegation that Cathcart was such an officer. Was this cured by the amendment? It still did not allege that Cathcart was an officer of the seller, but that he was a duly authorized agent of the plaintiff, with full power to represent it in making the contract for the articles specified therein, and binding the company to make and deliver them. Concede that he had authority to make the contract, and also to bind the plaintiff to make and deliver the articles; did he exercise it so as to thus bind the plaintiff? Evidently not. The written contract which he actually made contained as one of its terms that it did not become immediately binding. If Cathcart was an agent, and had authority to contract absolutely for the making and delivery of the articles, he did not exercise it, but in fact contracted that his principal should not become then presently bound. The cases in which it has been held that when there are provisions in an insurance policy declaring that none of its terms can be waived except in writing, there may, nevertheless, be a waiver by an agent, shown to be in fact authorized by the company to make it, in some other manner. Western Assurance Co. v. Williams, 94 Ga. 128, 21 S.E. 370, and like decisions, do not affect this case. That a party may, by himself or his agent duly authorized to do so, waive a provision of a contract in his favor, and that the other party may take advantage of such waiver, is quite different from an effort on the part of one party to a contract to waive one of its terms providing for a certain signature as precedent to its becoming binding on him, and thus, without notice to or the assent of the other party, to establish a right in his own favor which would not otherwise exist. This case is more like that of Reese v. Fidelity Mutual Life Ass'n, 111 Ga. 482, 36 S.E. 637, in which it was held that when the application for a policy of insurance and the policy itself stipulated that it should not become binding on the company issuing it until the first premium had been actually received, during the good health of the applicant, this payment of the premium during his good health was a condition precedent to fixing liability on the company. See, also, Mutual Reserve Fund Life Ass'n v. Stephens, 115 Ga. 192, 41 S.E. 679. In Perry v. Paschal, 103 Ga. 134, 29 S.E. 703, there was a consideration for the contract signed by the party sought to be bound, and the fact that both parties did not sign the agreement in regard to land was not fatal to a recovery, where the party not signing brought an equitable proceeding for specific performance. So in Sivell v. Hogan, 119 Ga. 167, 46 S.E. 67, the contract was based on a consideration, or at least the seal...
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