Bearden Mercantile Co. v. Madison Oil Co.
| Decision Date | 12 July 1907 |
| Citation | 58 S.E. 200,128 Ga. 695 |
| Parties | BEARDEN MERCANTILE CO. v. MADISON OIL CO. FITZPATRICK v. SAME. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
When an executory contract for the sale of goods provides in one distinct paragraph for the sale of articles of a given character at a stated price, to be delivered during a given period and in a stated manner, and in another distinct paragraph, beginning with the words, "We have also sold you," provides for the sale of articles of a separate and distinct character to be delivered in a given manner, but with no time for delivery stated, the contract is divisible containing two separate and distinct agreements for the sale of the different articles therein referred to; and this is true, notwithstanding the contract concludes with a guaranty that as to the articles referred to in the second paragraph local prices shall not be less than a given amount "for the balance of the season," and an agreement to handle only cash trade, except car load lots out of town.
[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 171-179.]
In a contract of a character above indicated, time would be of the essence so far as the article referred to in the first paragraph was concerned; but it would be otherwise as to the articles referred to in the second paragraph.
[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 218, 222.]
When a contract fixes no time for performance, it is to be construed as allowing a reasonable time for that purpose; and what is a reasonable time is a matter of fact, to be determined by a jury under all of the circumstances of the case.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 945, 947.]
While parties to a contract may, by a course of dealing after a contract has gone into effect, waive a stipulation therein, still, in order to bring about this result, it must appear from the circumstances that it was the mutual intention of the parties to so change the contract.
The answer and the amendment thereto, in so far as each related to that part of the contract referring to the sale of the hulls, set forth no ground of defense; but those portions relating to the sale of meal set forth a cause of action.
Error from Superior Court, Morgan County; H. G. Lewis, Judge.
Two actions by the Madison Oil Company-one against the Bearden Mercantile Company, and the other against H. H. Fitzpatrick. From a judgment in each case for plaintiff, defendants bring error. Reversed.
The Madison Oil Company brought suit against the Bearden Mercantile Company on an account for $1,627.96. The bill of particulars attached to the petition contained items of cotton seed hulls and meal, sold at different dates from September 1, 1903, to March 8, 1904. The total amount of the account was $1,958.28, which was credited with $330.32, leaving a balance due as above stated. The defendant filed an answer, in which it admitted that the goods set out in the petition were sold and delivered to the defendant as therein alleged, and that the plaintiff was entitled to recover, unless the defense set up by it was sustained. The answer then alleged that on October 15, 1903, the defendant, jointly with H. H. Fitzpatrick, entered into a written contract of which the following is a copy:
It was alleged that the items in the account prior to October 15, 1903, and subsequently to February 3, 1904, were not delivered under the contract, but such items were covered by another transaction; that the goods in the items between the dates of October 15, 1903, and February 3, 1904, were delivered under and in pursuance of the contract above set out, the defendant having received, during these dates, 90 3/4 tons of hulls and 26 1/2 tons of meal; that the legal effect of the contract was to give the defendant a half interest in the goods therein referred to, but that he has not received of the plaintiff his half of the goods. He has at all times been ready and willing, and has offered, to receive the goods that he was entitled to under the contract, and has been at all times ready and able to pay for the same as provided by the contract. On January 1, 1904, plaintiff did not have on hand sufficient hulls to deliver all that might have been demanded of it; but defendant waived prompt delivery and accepted later deliveries, and was willing to accept the same. On February 3, 1904, plaintiff, without lawful excuse, refused to deliver any more goods under the contract, and notified defendant that it would not do so. It then and there repudiated and terminated the contract. The defendant persisted in an effort to obtain satisfaction, but, being unable to do so, on April 5, 1904, offered to pay petitioner the amount sued for in this case, less the damages that it had sustained on account of the breach of the contract by the plaintiff. A tender of $798.05 was made, which is the amount admitted to be due by the defendant after crediting the account with the amount of the damages above referred to. At the time of the breach of the contract the market price of hulls at the place of delivery was $10.50 for loose and $11.50 for baled hulls, and the market price of meal was $24 per ton.
At the trial the defendant offered an amendment to its answer, in which it was alleged that the defendant was at all times ready and willing to pay under the terms of the contract, and has never refused; that the plaintiff kept the books, and it was the custom of the plaintiff, in its business, to present statements for payment, but it presented to defendant no statement at the end of each month, or at any time during the deliveries, though defendant requested the same. Defendant was known to be amply solvent, and by tacit consent of both parties a prompt settlement and payment at the end of each month was waived, and the plaintiff did not object to making further deliveries after the end of each month because settlements had not been made by the defendant; but it waived payment at such times and continued to make deliveries under the contract. Plaintiff was a manufacturer of hulls and meals, and was manufacturing the same during the continuance of the contract, and up to February, 1904, and thereafter. On January 1, 1904, plaintiff had not the hulls contracted to be sold on hand, which was well known to both parties; but the plaintiff was expected to manufacture the same. Had it had the hulls to deliver, there was ample room, and it was entirely possible, to have stored 150 tons of said hulls in plaintiff's warehouse, as stipulated in the contract. Defendant waived a strict delivery of all hulls due on January 1st, and by mutual consent and tacit understanding the hulls were continued to be delivered from time to time thereafter upon the contract; both parties thus departing from the enforcement of the time stipulations. It was not the intention of either party to abandon the contract or waive a final performance. Were it otherwise, it was the duty of the plaintiff to have stored for the defendant in its warehouse at least 150 tons of hulls on January 1, 1904, to be delivered as desired after that time. This the plaintiff did not do, but, on February 3, 1904, notified defendant that it would make no more deliveries. Defendant then demanded a full performance, and offered to perform all obligations on its part, but plaintiff refused, to the damage of defendant. The court refused to allow this amendment, and struck the original answer on general demurrer; and judgment was entered against the defendant for the amount sued for. The defendant excepted.
The facts in the case of Madison Oil Company v. Fitzpatrick, except as to the amounts, are practically the same as those embraced in the foregoing statement.
Samuel H. Sibley and Williford & Middlebrooks, for plaintiffs in error.
Foster & Butler and F. C. Foster, Sr., for defendant in error.
1. The contract involved in the present case is not a contract for the sale of goods. There were no particular articles identified by the contract, and it lacked this essential element of a sale. It is an executory agreement for the sale of goods to be delivered at a future date. As such it is valid and binding; and this is true, notwithstanding the seller had...
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