Dunaway v. J. B. Colt Co

• Decision Date: 26 March 1921
• Docket Number: (No. 11787.)
• Citation: 106 S.E. 599,26 Ga.App. 554
• Parties: DUNAWAY. v. J. B. COLT CO.
• Court: Georgia Court of Appeals

26 Ga.App. 554

106 S.E. 599

DUNAWAY.

v.J. B. COLT CO.

(No. 11787.)

Court of Appeals of Georgia,

Division No. 2.

March 26, 1921.

(Syllabus by the Court.)

Error from Superior Court, Wilkes County; B. F. Walker, Judge.

Action by the J. B. Colt Company against W. L. Dunaway. Judgment for plaintiff, and defendant brings error. Affirmed.

The J. B. Colt Company sued W. L. Dun-away for the purchase price of certain property stored or retained for him. The undisputed evidence shows the following facts: On June 13, 1918, defendant gave an order for the goods in question, which order the plaintiff accepted on June 17, 1918. On June 29, 1918, the defendant notified the plaintiff that owing to war conditions, he would not take the goods, and to consider his order as canceled. On July 17, 1918, the defendant shipped the goods by railroad from its factory at Chicago, Ill., addressed to the defendant at Tignall, Ga. The goods arrived at destination on August 9, 1918, but the defendant refused to accept them. On the plaintiff's instructions they were returned to the plaintiff at Chicago, and there placed in a warehouse and held for the defendant.

Clement E. Sutton, of Washington, Ga., for plaintiff in error.

I. T. Irvin, Jr., of Washington, Ga., for defendant in error.

JENKINS, P. J. (after, stating the facts as above). [1] This is not a suit for the purchase price of goods sold and delivered on open account. If such were its purport, then under the facts disclosed by the record, it could not have been maintained. Maddox v. Wagner, 111 Ga. 146, 36 S. E. 609; Bridges & Murphy v. MeFarland, 143 Ga. 581, 583, 85 S. E. 856; Dilman Bros. v. Patterson Produce Co., 2 Ga. App. 213, 58 S. E. 365. The nature of the present action, which is for goods stored or retained, distinguishes it from these cases and the cases of Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 146, 42 S. E. 378, 59 L. R. A. 122, 94 Am. St. Rep. 112, and Rounsaville & Bro. v. Leonard Mfg. Co., 127 Ga. 735 (4), 56 S. E. 1030. In none of the cases cited were the goods at any time stored or retained for the vendee. As was said by the Supreme Court in the Oklahoma Vinegar Co. Case, 116 Ga. 146, 42 S. E. 381, 59 L. R. A. 122, 94 Am. St. Rep. 112:

"While * * * the seller might have stored and retained the property for the buyers after notice by the buyers that they would not receive the goods, it is sufficient to say that it did not do so, but without so doing sought to recover the price agreed on. Had it done so itmight have brought an action against the buyers for the entire price of the goods. On the contrary, instead of storing and retaining the goods after the notice, it delivered them to the carrier, doubtless under the well-recognized general rule that, in ordinary transactions of bargain and sale of goods, a delivery to the carrier is a delivery to the seller."

The basis of that holding was that, inasmuch as the plaintiff's petition "treated the contract as an executed one on its part, " its only remedy under the facts was "an action to recover damages for the breach." In the Rounsaville Case the seller sought, by its delivery to the carrier, to treat the contract as executed on its part, and to sue for the purchase price of the goods, which the court, following the Oklahoma Vinegar Company Case, held could not be done. After the refusal of the goods, the plaintiff, in delivering to the carrier, chose to regard it solely as the defendant's agent, abandoned the goods, and, as the court said (127 Ga. 742, 56 S. E. 1033):

"They were not stored in the railroad's warehouse by the plaintiff, nor at the instance of the plaintiff. They never have been held and stored by the plaintiff for the defendants, so as to bring the facts of the case within the provisions of the statute. * * *"

The instant case is also distinguishable from that of Lander v. Cole Bros. Co., 10 Ga. App. 102, 72 S. E. 719, where the seller alleged and relied upon a delivery to the purchaser.

In the case before us, however, the plaintiff did not abandon the goods, and does not claim or stand upon a delivery, but has continuously maintained its dominion and control over them, has evidently paid all transportation and storage charges while in the hands of the railroad, and still retains for the defendant in its warehouse the identical goods ordered. The petition is planted...