Bridges & Murphy v. McFarland
| Decision Date | 23 June 1915 |
| Citation | 85 S.E. 856,143 Ga. 581 |
| Parties | BRIDGES & MURPHY v. MCFARLAND. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where in a contract of sale, the purchaser agrees to make a partial cash payment and give notes for the balance, the seller to retain title until the full purchase money is paid, tender on the terms of the buyer's compliance with the contract will not have the effect of transferring the title to the purchaser. If the buyer refuses to make the partial payment and give the notes as called for by the terms of sale, or to accept any possession or control of the property, no title passes to him, and the seller's remedy is not for the purchase price of the chattel, but for the breach of the contract.
Where an executory contract of sale does not stipulate to pay attorney's fees, but to give notes providing for their payment, in addition to the purchase price, in an action for its breach attorney's fees as stipulated are not recoverable.
Where testimony is offered as a whole, if only a part of such testimony be admissible, the refusal to admit it as a whole is not error.
In this case it was error to direct a verdict for the purchase price of the chattel, with attorney's fees.
Error from Superior Court, Decatur County; E. E. Cox, Judge.
Action by the Southern Combing Gin Company against Bridges & Murphy a partnership composed of R. L. Z. Bridges and another. Pending the action plaintiff was adjudicated bankrupt, and T F. McFarland, his trustee, was substituted as plaintiff. Judgment for plaintiff on directed verdict, and defendants bring error. Reversed.
The Southern Combing Gin Company brought an action against Bridges & Murphy, a partnership composed of R. L. Z. Bridges and E. T. Murphy, alleging that the defendants were indebted to them in the sum of $275, besides interest and attorney's fees, on a contract executed by them on April 27, 1911, whereby the defendants bought of the plaintiff a certain gin described therein, and promised to pay to them $68.75 on delivery and $206.25 on December 15, 1911, a copy of the contract being attached; that the plaintiff shipped the gin to the defendants in accordance with the terms of the contract, and tendered the same to them upon the payment of the cash consideration of $68.75 and the signing of a promissory note for the balance of $206.25, which cash payment the defendants refused to make, and they refused to sign the promissory note; that the plaintiff then tendered and continues to tender the gin to the defendants, in compliance with the obligation of the contract; that by reason of their failure to make the cash payment specified in the contract the deferred payment has become due and payable that they had been notified that the gin was subject to their order at the depot at Brinson, Ga.; and that the defendants were indebted under the contract for attorney's fees, and had been duly served with notice as required by law that they would claim the same. The prayer was for judgment against the defendants for the full amount due under the contract together with attorney's fees and interest. The contract attached to the petition directed the plaintiff to ship to the defendants, on or about July 1, 1911, to Brinson, Ga the machinery described in the contract, which the defendants agreed to receive on arrival and pay all freight thereon, and in addition thereto the sum of $275, as follows: Cash on delivery $68.75, and a note due December 15, 1911, for $206.25. "The above described notes are to be executed for the purchase price of the aforesaid machinery hereby conveyed and purchased and to be put up and operated as stated in this order contract, and the vendor's privilege and the title is specially retained and granted securing their payment." The contract contained a further obligation to ...
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