Clark v. Wood, (No. 19083.)

• Decision Date: 21 February 1929
• Docket Number: (No. 19083.)
• Parties: CLARK v. WOOD.
• Court: Georgia Court of Appeals

39 Ga.App. 340

147 S.E. 173

CLARK

v.WOOD.

(No. 19083.)

Court of Appeals of Georgia,

Division No. 2.

Feb. 21, 1929.

(Syllabus by the Court.)

Stephens, J., dissenting.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by Mrs. P. P. Wood against Mrs. I. C. Clark. Judgment for defendant by trial term was reversed by the appellate division, defendant's certiorari was overruled by the superior court, and defendant brings error. Reversed.

A. W. White, of Atlanta, for plaintiff in error.

Frank Grizzard and H. F. Sharp, both of Atlanta, for defendant in error.

BELL, J. Mrs. Wood made a contract with Mrs. Clark for the purchase of two cows at the price of $100, paying $5 at the time and agreeing to pay the remaining $95 in a few days, when the cows were to be delivered. In about a week Mrs. Wood went for the cows, and Mrs. Clark would not deliver them. Mrs. Wood tendered the balance due and demand-ed performance. The tender and the demand were both refused. Mrs. Wood then brought a suit in trover against Mrs. Clark in the municipal court of Atlanta to recover the property, and two days after the filing of the suit she paid into court the sum of $95 as a cash tender to the defendant.

The facts appearing as above stated, the plaintiff, on the trial, was nonsuited. She moved for a new trial, which the court refused, and, on her appeal to the appellate division, the judgment of the trial court was reversed; whereupon the defendant carried the case by certiorari to the superior court, and, the certiorari being overruled, the defendant excepted.

Besides the receipt from Mrs. Clark for the initial payment of $5 and a receipt from the clerk of the municipal court showing deposit in court of the remaining $95 as continuing tender, the only evidence adduced was the testimony of the plaintiff, which, so far as material, was as follows:

"I purchased some cows from Mrs. I. C. Clark, the defendant, on February 28. I bought two cows from her. One was a little black and white spotted Holstein cow, and the other was supposed to be a Jersey cow. I paid Mrs. Clark $100 for these cows, or, rather, that is what I was to pay her. I gave her $5 and took a receipt for it. The paper which you hand me is the receipt I got. I was to pay the balance when I went for the cows Monday morning. I bought the cows on Monday, and was to go for them the third day, if nothing happened. It was snowing and sleeting, so I called Mrs. Clark and told her I couldn't get over there, and she said it would be all right. I had a cow which had freshened in the meantime, and I had to stay up two nights with her. I called Mrs. Clark about the cows on Friday, and she said: 'I kept the cows up one day, and you didn't come for them.' I told her that the weather had been bad and that I had had a sick cow. I told her that my husband didn't have but two hours off, but that, if he found that he had time he would be up there for the cows on Saturday, but that, if he didn't, I would come for them Monday. We went up there Monday morning and carried the truck. That was the following Monday after I had paid her the $5. I told Mrs. Clark that I had come for the cows and she said: 'I expect those cows have been sold.' I thought she was joking. I said: 'Here's your money.' She said: 'Those cows have been sold.' I said: 'Those are my cows and I want them. I have been to a lot of trouble.' She said: 'Here's your money.' I said: 'I don't want the money. That is not right.' I went back to the truck and told my husband what she had said. I told Mrs. Clark that, if she was going to treat me that way, she ought to pay me for my trouble. I told her I would let the courts settle it. It was snowing and sleeting and raining all at the same time. When I phoned Mrs. Clark, she said it was all right. I didn't ask her then where the cows were. She told me on the following day that she had kept them up, but that they were then out in the pasture. I went for the cows the following Monday morning. I saw the cows, and valued them at $100 apiece. That is what they would have brought me. I am acquainted with the value of cattle, as I handle cattle. The calf of one of those cows was 10 days old, and Mrs. Clark told me she was giving three gallons of milk, and the other was to freshen in two weeks. * * * It costs a good deal to feed cows. Mrs. Clark said she had fed these cows several days, and I offered to pay her. I told her I would pay her for the feed. She says: 'All I want to do is to give your money back.' I said: 'If it has cost you anything, I will pay it.' * * * I bought both of these cows for $100, and could have sold them for $100 apiece. I think I bought them cheap; if I hadn't, I would not have bought them. I decided I would take the cows, and Mrs. Clark came out to the car and wrote me a receipt after I had got in the car. She priced the cows to me while I was in the house. I told her I would take the cows, and she wrote me a receipt. If I had been going off without taking these cows, I would have [gone]. I did not tell Mrs. Clark that I would not give her over $40 apiece for the cows; I gave her what she asked for them. The other cow not being present, I told her I was taking some risk; but, as we were just $10 apart, I told her I would give her price, and I did. * * * I was to pay her for the cows when I went back after them. The receipt says that I was to pay her on March 1—whatever it says. If I had known that she was not going to let me have the cows, I would have hired somebody to go and get them. I carried Mrs. Clark a $100 bill, and she wouldn't have it."

Under the evidence adduced, the contract upon which the plaintiff relied was a mere executory agreement to sell, not passing the title; and in such a case, although a part of the purchase money has been paid down, the sale cannot be rendered executed simply by a tender by the vendee of the remainder of the purchase money, where the vendor, repudiating the contract, declines the tender and refuses to deliver the...