Henderson Elevator Co. v. North Georgia Milling Co.
| Decision Date | 17 August 1906 |
| Citation | 55 S.E. 50,126 Ga. 279 |
| Parties | HENDERSON ELEVATOR CO. v. NORTH GEORGIA MILLING CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In a contract for the sale of goods, words descriptive of the subject-matter of sale and the time of shipment are ordinarily to be regarded as a warranty.
Whether a contract be entire or severable depends on the intention of the contracting parties. A contract for the sale of 20,000 bushels No. 2 white corn, bulk, at 59 1/2 cents per bushel 10,000 bushels to be shipped in February, and 10,000 bushels in March, is to be construed as an entire contract.
Where there was a contract of sale of corn and a portion was delivered, paid for, and used by the purchaser, he cannot rescind the contract upon the ground that the quantity received and accepted by him was inferior in quality to that stipulated in the contract.
But, if the vendor delivered corn inferior in quality and in less quantities than stipulated in the contract of sale, the vendee, though unable to rescind the contract because of his inability to make restitution of the portion used by him may, in defense to an action by the vendor to recover damages for a breach of the contract, recoup damages approximately flowing from the vendor's failure to deliver corn in the quantity and of the quality contracted for, provided there has been no waiver by the vendee touching the time of delivery or with respect to the quality of the corn tendered and accepted.
If the vendee accepted delivery of inferior corn, and, with knowledge of its inferiority, caused it to be ground into meal, the vendor will not be answerable in damages for the losses accruing from milling the corn. Nor can the vendee complain, after acceptance of the corn with knowledge of its defective condition, that it was inferior to the contractual quality.
Error from Superior Court, Whitfield County; A. W. Fite, Judge.
Action by the Henderson Elevator Company against the North Georgia Milling Company. Judgment for defendant, and plaintiff brings error. Reversed.
F. K McCutchen and C. D. McCutchen, for plaintiff in error.
R. J. & J. A. McCarny, for defendant in error.
EVANS J. (after stating the facts).
The motion for a new trial complained that many excerpts from the charge were erroneous, and that the court erred in refusing several written requests to charge, and in certain rulings on the admissibility of testimony. We shall not undertake to specifically deal with each of the numerous assignments of error, but will endeavor to discuss the legal principles which must control the case on the next trial under the pleadings as they shall stand after striking paragraphs 8 and 9 of the answer.
1. In a contract for the sale of goods, words descriptive of the subject-matter of sale and the time of shipment are ordinarily to be regarded as a warranty. The plaintiff agreed to sell and the defendants agreed to buy "20,000 bushels of number 2 white corn, bulk." "These words comprehend quality, as well as variety, and import a warranty on the part of the seller as to both." Miller v. Moore, 83 Ga. 692, 10 S.E. 360, 6 L.R.A. 374, 20 Am.St.Rep. 329; Americus Grocery Co. v. Brackett, 119 Ga. 489, 46 S.E. 657. The contract of sale bound the seller to deliver the corn in stipulated quantities during certain months. It is to be presumed, as this is a mercantile contract, that the stipulations respecting delivery were not idle words, but were intended as a covenant binding the seller to make delivery to the purchaser in the quantity and within the time stipulated. Time was an important element, if not of the essence of the contract. Such a material incident of the sale should be construed as a warranty in that respect. Norrington v. Wright, 115 U.S. 188, 6 S.Ct. 12, 29 L.Ed. 366.
2. The contract of sale was for a stated quantity of bulk corn, with provision for delivery of specific quantities within specific periods. The thing sold was one aggregate bulk, not several bulks of the quantity specified for each delivery. This is an important fact in determining the intention of the parties as expressed in their contract, when we come to construe the contract as being entire or severable. The criterion is whether the sale of the whole quantity, as a whole, is of the essence of the contract. If it appears that the contract was to take the whole or none, then it is entire. Broxton v. Nelson, 103 Ga. 330, 30 S.E. 38, 68 Am.St.Rep. 97. It would seem to be beyond cavil that the parties intended that the contract of sale should operate on the full amount of the corn therein stipulated. The seller could not have intended to sell nor the buyer to purchase a less quantity. We therefore hold that the contract was an entire one.
3. It was alleged in the pleadings and proved on the trial that the purchaser had accepted, paid for, and used a portion of the corn. The purchaser was thus not able to make restitution, so as to repudiate the contract. Lyon v. Bertram, 20 How. (U. S.) 149, 15 L.Ed. 847. A party may rescind without the consent of the opposite party only when both parties can be restored to the condition in which they were before the contract was made. Civ. Code 1895, § 3712. See, in this connection, Timmerman v. Stanley, 123 Ga. 850, 51 S.E. 760, 1 L.R.A. (N. S.) 379. The defendants admitted that they had refused to accept further shipments of corn under their contract with the plaintiff, but did not plead a rescission. It was their contention on the trial that the corn which was accepted by them was of inferior grade, and because of this fact, and the failure of plaintiff to deliver within the stipuated period, they refused to accept the balance of the corn. If a vendee has accepted a portion of a quantity of goods contracted for, and they prove inferior to those stipulated for, he cannot for this reason refuse to accept the residue, but if the residue prove inferior, he may refuse to accept them. Cahen v. Platt, 69 N.Y. 348 25 Am.Rep. 203. The defendants had contracted for corn to be delivered during the months of February,...
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