Brenard Mfg. Co. v. Kingston Supply Co.

• Decision Date: 14 May 1918
• Docket Number: 9244.
• Citation: 95 S.E. 1028,22 Ga.App. 280
• Parties: BRENARD MFG. CO. v. KINGSTON SUPPLY CO.
• Court: Georgia Court of Appeals

95 S.E. 1028

22 Ga.App. 280

BRENARD MFG. CO. v. KINGSTON SUPPLY CO.

No. 9244.

Court of Appeals of Georgia, First Division

May 14, 1918

Syllabus by the Court.

Promises which are mutual to the extent that each affords the sole consideration to the other will not be construed as independent, but will, in the absence of clear indications to the contrary, be taken as dependent one upon the other; and while, ordinarily, dependent covenants are such as mutually afford to the other the whole consideration, still the stipulations and the circumstances of the contract may be such as to render covenants mutual and dependent, even though one of them affords to the other only a part of its consideration. In such a case the question as to whether such covenants shall be taken as mutually dependent is to be determined by reference to the rational meaning and intent of the parties as disclosed by the entire instrument, read in the light of the surrounding circumstances and the purposes for which the contract as a whole was made. Civ. Code 1910 §§ 3720, 4223, 4303; Schmidt v. Mitchell, 117 Ga. 6 43 S.E. 371; 7 R.C.L. 1090.

Even though an agreement may refer to certain notes as having been given "in payment," they are not to be so taken where, by the terms of the same instrument, one of the conditions of the contract is to the effect that the obligations made by the notes shall be promptly met.

Error from Superior Court, Bartow County; M. C. Tarver, Judge.

Action by the Brenard Manufacturing Company against the Kingston Supply Company. Judgment for defendant, and plaintiff brings error. Reversed.

Though an agreement may refer to notes as having been given "in payment," they are not to be so taken where one of conditions of same agreement is that the obligations made by the notes shall be promptly met.

The defendant entered into a contract for the purchase of a piano and certain other personal property from the plaintiff, and executed six purchase-money notes, for $75 each, maturing monthly, the first of which was payable two months after date. The material portions of the contract are as follows:

Kingston, State of Georgia.

February 3, 1915.

To Brenard Manufacturing Co., Iowa City, Iowa--Gentlemen: On your approval of this order, deliver to me at your earliest convenience, f. o. b. factory or distributing point, the Claxton piano, watches, silverware and advertising matter described on this and reverse side, in payment for which I herewith hand you my six notes, payable to your order aggregating $450.00. If order is not approved and shipped by you, the notes are to be canceled and returned to me.

My last twelve months' sales were $30,000.00, and upon this figure my next twelve months' sales to be $36,000.00, and that if 1 1/4 of my gross sales does not amount to four hundred fifty ($450.00) dollars for the next twelve months, you will pay me the deficiency in cash, and send your bond for $450.00 to cover this agreement with me. You are to conduct all of the correspondence in securing club leaders and members and conducting the club-extension campaign.

To make the last above paragraph binding upon you, I agree to furnish you within ten days approximately 150 names and addresses of persons whom I believe will make good club leaders and members, with whom you are to take up correspondence immediately. I agree to take the shipments promptly, carry out the trade-extension campaign plan promptly meet all obligations entered into under this agreement, keep the piano well displayed in my store, issue piano votes for each cent purchases, and every sixty days of this contract to report to you my gross sales, and promptly furnish you all information you request to enable you to push the trade-extension campaign.

In consideration of the special methods set forth in your copyrighted plan and the special terms and agreements herein, this order cannot be countermanded.

Brenard

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