Byrd v. Campbell Printing-Press & Mfg. Co.
| Decision Date | 18 June 1894 |
| Citation | 20 S.E. 253,94 Ga. 41 |
| Parties | BYRD v. CAMPBELL PRINTING-PRESS & MANUF'G CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
If the terms of a contemplated sale be orally agreed upon by the buyer and the agent of the seller, with the understanding that the former is to reduce the same to writing, and transmit the writing to the seller for his acceptance or rejection, and certain vitally material stipulations favorable to the buyer, are by mistake omitted from the writing, and with knowledge of this omission the seller accepts the buyer's proposal, and thereupon the latter (both parties fully understanding the terms of the sale to be the terms orally agreed upon) executes and delivers his promissory notes for the price, and afterwards, by reason of the failure of the seller to comply with the stipulations omitted from the writing, the consideration of the notes so fails, or partially fails, that in equity the buyer would be entitled either to a rescission, or to a material abatement in the price, these facts may be set up as a defense (complete or partial) to an action on the notes; the defendant in his plea alleging, not only that the seller accepted the written proposal with knowledge of the oral stipulations, and of their omission by mistake from the writing, but that he has admitted in writing that this was true, and the plea not being demurred to specially on the ground that the writing to prove this admission was not set forth either by description or by copy of the same.
Error from city court of Atlanta; Howard Van Epps, Judge.
Action by the Campbell Printing-Press & Manufacturing Company against C. P. Byrd on a promissory note. There was a verdict for plaintiff, and defendant brings error. Reversed.
D. W Rountree, for plaintiff in error.
B. F. & C. A. Abbott, for defendant in error.
The Campbell Printing-Press & Manufacturing Company sold and delivered to Charles P. Byrd a printing press, the latter giving his promissory notes for the purchase price of the same. An action was brought by the Campbell Company upon one of these notes, which, notwithstanding the defenses set up and attempted to be set up, by the defendant, resulted in a verdict and judgment in favor of the plaintiff. That case is reported in 90 Ga. 542, 16 S.E. 267. Afterwards, the Campbell Company brought a second action against Byrd upon another of the notes above mentioned. To this action the defendant filed a special plea, to which the plaintiff demurred. Pending argument on the demurrer, the defendant offered an amendment to this plea, which the court refused to allow, and then passed an order sustaining the demurrer, and striking the defendant's special plea. There was a verdict for the plaintiff for the full amount of the note, and the defendant brings the case to this court for review, assigning as error the refusal of the court to allow the amendment offered to his special plea, and the striking of that plea on demurrer. The questions dealt with in the present case were not passed upon or decided in the former case between these parties. In order to set forth clearly the questions involved in the controversy now presented for adjudication, we will state at some length the substance of the special plea, and of the amendment which the defendant desired to make to the same. Although, in pursuing this course, there may be, to a considerable extent, a repetition of the facts contained in the statement and opinion reported in 90 Ga. and 16 S.E. , supra, this seems, nevertheless, the better method of dealing with this somewhat complicated case.
As to the facts connected with the sale of the press to Byrd, and the negotiations leading up thereto, the defendant's special plea furnishes the following history: In June, 1889 Byrd entered into a written contract with the Campbell Company touching the purchase by him of a printing press, by the terms of which contract he was to have three months' trial of the press, with the right to reject the same if it failed to come up to certain express warranties as to workmanship, suitability, etc. After a trial of the press, it was found, for a number of reasons, to be entirely unsatisfactory; and accordingly Byrd, within the time stipulated in the contract, exercised his option to reject the press, and notified the resident agent of the Campbell Company to take the press out of his office. The Campbell Company recognized the existence of the defects in the press pointed out by Byrd, and the trade was declared off. Subsequently, the company wrote Byrd that it was "making some radical changes, which would make the bed of said press as accessible in front of the cylinder as it is on any back-delivery, two-revolution press," and asked to be permitted to make these changes on the press then in Byrd's office. Under orders from his company to try every means possible to induce Byrd to keep the press, the agent called upon Byrd, and prevailed upon him to allow the press to remain in his office, free of charge, pending negotiations for a trade upon the basis of remedying all defects, which the agent assured Byrd could be done by making certain alterations and improvements, and exhibited a letter from the company to that effect. Some time elapsing, and no steps having been made by the company to perfect the press as proposed, Byrd again requested the agent to remove the same, stating he had recently purchased another of a different kind, and had no need of an additional press. The agent, however, in accordance with instructions from his principal, "persisted in trying to make a trade, and insisted that Byrd should make him a proposition to buy said press, upon the express condition that such alterations and improvements would be made on it as would remedy all the defects on account of which it had been rejected, and would bring it up to the standard fixed in the original contract." Byrd thereupon told the agent he would not buy the press at any price, in the condition in which it then was, but, after much importunity, proposed to the agent to buy it upon certain terms, upon the express condition that all defects would be...
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