Dunaway v. J.B. Colt Co.

• Decision Date: 26 March 1921
• Docket Number: 11787.
• Citation: 106 S.E. 599,26 Ga.App. 554
• Parties: DUNAWAY v. J. B. COLT CO.
• Court: Georgia Court of Appeals

106 S.E. 599

26 Ga.App. 554

DUNAWAY v. J. B. COLT CO.

No. 11787.

Court of Appeals of Georgia, Second Division

March 26, 1921

Syllabus by the Court.

Where an executory contract of purchase and sale has been breached prior to the delivery of the goods, by reason of the purchaser's anticipatory refusal to accept them, the seller, under section 4131 of the Civil Code of 1910, has the choice of one of three remedies: (1) He "may retain them and recover the difference between the contract price and the market price at the time and place for delivery"; or (2) "he may sell the property, acting for this purpose as agent for the vendee, and recover the difference between the contract price and the price on resale," provided he does so after notice to the vendee and within a reasonable time (Robson & Evans v. Hale & Sons, 139 Ga. 753 755, 78 S.E. 177); or (3) "he may store or retain the property for the vendee and sue him for the entire price" (Maddox v. Washburn-Crosby Mill Co., 135 Ga. 539, 69 S.E. 821; Southern Flour & Grain Co. v St. Louis Grain Co., 11 Ga.App. 401, 403, 75 S.E. 439).

Where a purchaser of goods renounces the contract of sale prior to their delivery, by notifying the seller to cancel the order and the seller then delivers the goods to a railroad company for transportation to the purchaser, and, after their arrival in the railroad depot at destination, the purchaser still refuses to accept the goods, and the seller then has them returned to the place of shipment and there holds them in a warehouse for the purchaser, such a mere ineffective tender on the part of the seller would not, ipso facto, amount to a waiver on his part of his rights, under the Code section cited, and he would ordinarily be still entitled to pursue one of the remedies there provided, and to sue for the purchase price of the goods thus stored or retained for the purchaser.

There was no evidence of any probative value tending in any way to dispute the plaintiff's case as established by its testimony, and the court therefore did not err in directing a verdict in the plaintiff's favor.

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. Dunaway 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).

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. McFarland, 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 it might 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...