Brenard Mpg. Co v. Kingston Supply Co

• Decision Date: 14 May 1918
• Docket Number: (No. 9244.)
• Citation: 22 Ga.App. 280,95 S.E. 1028
• Parties: BRENARD MPG. CO. v. KINGSTON SUPPLY CO.
• Court: Georgia Court of Appeals

22 Ga.App. 280

95 S.E. 1028

BRENARD MPG. CO.

v.KINGSTON SUPPLY CO.

(No. 9244.)

Court of Appeals of Georgia,

Division No. 1.

May 14, 1918.

(Syllabus by the Court.)

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.

The defendant entered into a contract for the purchase of a piano and certain other personal property from the plaintiff, and ex ecuted 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 Manufacturing Company's trade-extension campaign order consists of the following, " etc.

Under the terms of the agreement the defendant's notes matured some time prior to the maturity of the contract; that is to say, the agreement pertaining to the guaranteed increase of sales covered a period of one year commencing February 3, 1915, whereas the first note matured on April 3, 1915, and the last on September 3, 1915. The bond provided for by the terms of the contract was duly furnished the defendant by the plaintiff. The defendant did not pay the notes at maturity, and the plaintiff brought suit thereon as they matured; and finally, to the suit on the last note, the defendant filed a plea setting up that there had been a deficiency in the amount of the guaranteed gross sales during the period covered by the bond, and that by reason of this fact there was due the defendant, under the terms of the bond, a small amount in excess of the sum sued for on that note. After the evidence had been...