Georgia Wool Stock Co. v. Transatlantic Clock & Watch Co.

• Decision Date: 12 February 1925
• Docket Number: 15634.
• Citation: 126 S.E. 902,33 Ga.App. 465
• Parties: GEORGIA WOOL STOCK CO. v. TRANSATLANTIC CLOCK & WATCH CO.
• Court: Georgia Court of Appeals

126 S.E. 902

33 Ga.App. 465

GEORGIA WOOL STOCK CO. v. TRANSATLANTIC CLOCK & WATCH CO.

No. 15634.

Court of Appeals of Georgia, Second Division

February 12, 1925

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by the Transatlantic Clock & Watch Company against the Georgia Wool Stock Company. Judgment for plaintiff was affirmed on certiorari to superior court, and defendant brings error. Affirmed.

Elliott Cheatham, of Atlanta, for plaintiff in error.

W. S Dillon and Wm. J. Davis, Jr., both of Atlanta, for defendant in error.

JENKINS P.J.

A vendor sued a vendee in the municipal court for the balance of the purchase price of one hundred pistols and of other articles bought under a single order. Twenty-seven of the pistols were first shipped, and the remaining seventy-three subsequently. The undisputed evidence showed that the defendant vendee used and paid for the first twenty-seven pistols, although one of its witnesses testified that three of these, upon test, had proved defective, in that "the springs in the firing pin were not strong enough to fire the cap." The defendant returned the second shipment of pistols with other merchandise, first assigning, in its letter to the plaintiff vendor, as a reason therefor, that it could not "use same, as we have changed our plans for our winter catalogue," but in a letter to the plaintiff 12 days later, in reply to the plaintiff's letter insisting upon payment, assigning as a reason that "we tried for a whole week to get one of these guns to shoot and were unable to do so; we mailed out some to our customers and every one of them were returned." It does not appear just when the returned shipment reached the plaintiff. The evidence failed to show that any test or mechanical examination whatever was made of the guns received in the second shipment, and it is admitted by counsel in the briefs that "other items are not here contested." The only possible contention made in the trial with reference to defectiveness in the second lot of firearms, other than the self-serving declaration contained in the second letter, not to be accounted as of evidential value, appears to be that they were of the same make, part of the same order, and in superficial appearance were like the first shipment, three of which twenty-seven had proved defective on test. There was some reference in the defendant's testimony to an "unusually large number of guns being returned" by customers, but it does not appear to which shipment, if either, this referred, and the only definite statement as to such returns appears to be, "I should say 5 or 6 were returned out of the 27," thus apparently referring to the first shipment. The defendant excepts to the overruling by the superior court of its certiorari from the verdict and judgment directed for the plaintiff. Held:

1. The general rule, as stated in Fenn v. Ware, 100 Ga 563, 566, 28 S.E. 238, 239, that "where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and different consideration" (see, also, Tuggle v Green, 150 Ga. 361 [2], 370, 104 S.E. 85; Frank & Meyer Neckwear Co. v. White, 29 Ga.App. 695 [3], 116 S.E. 855; Cowdery v. Greenlee, 126 Ga. 786, 789, 55 S.E. 918, 8 L.R.A. [ N. S.] 137), does...