Oklahoma Vinegar Co. v. Carter
| Decision Date | 07 August 1902 |
| Citation | 42 S.E. 378,116 Ga. 140 |
| Parties | OKLAHOMA VINEGAR CO. v. CARTER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. When two parties have entered into a written contract for the purchase and sale of goods, neither a countermand of the order for the shipment of the goods, nor a notice by the purchaser to the seller that he will not accept and receive them, is effectual to cause a rescission of the contract. Such a result cannot be accomplished without the assent of the seller.
2. The notice indicated above, under the common law, operates as a breach of the contract by the vendee, and in such a case the remedy of the vendor is in an action to recover damages for such breach. Under the statute, the vendor, after the purchaser refuses to take and pay for the goods, may in an action recover the price of the goods, where it appears that after default of the purchaser he stored and retained them for such purchaser. Under the evidence the statutory remedy was not available to the plaintiff in the present case, and his only remedy was a suit to recover damages for the breach of the contract. His action, as brought, to recover the contract price of the goods, was not maintainable.
Error from city court of Douglas; F. W. Dart, Judge.
Action by the Oklahoma Vinegar Company against Carter & Ford partners. From a judgment for defendants, plaintiff brings error. Affirmed.
Quincey & McDonald, for plaintiff in error.
Perry & Tipton, for defendants in error.
The Oklahoma Vinegar Company brought an action on an account against the firm of Carter & Ford to recover the sum of $72. The action was predicated on an order given in writing by Carter & Ford, a copy of which was attached to the petition which is as follows:
The defendants answered, denying indebtedness as alleged, setting up that they never received the goods. They admitted that they signed the order, but said that they did so under a misapprehension, and that the same was canceled in a very short time after it was signed. For further plea they set up that if plaintiff had any right of action at all in the premises, which they deny, it was for damages on breach of contract, and it could not recover on open account, and this action should be dismissed. The case was submitted by agreement to be heard by the judge without the intervention of a jury on the following agreed statement of facts "The defendants, Carter & Ford, by and through R. L. Ford, the junior member of said firm of Carter & Ford, gave the salesman of the plaintiff, the Oklahoma Vinegar Company, the order [[heretofore set out]. A few minutes after giving the order the said Ford saw William Moore and purchased a whole barrel of cherry phosphate from him, that bore the same name, and that he judged, from the taste and general appearance, to be the same goods as the sample shown him by the salesman of plaintiff, which samples he tasted, and from which he gave the order, for which whole barrel he paid Moore one dollar and a quarter, and that he immediately went to the salesman of the plaintiff and countermanded the order, and notified him that he would not accept the goods if shipped. The said Ford also immediately mailed, under special delivery postage, a letter to the plaintiff, countermanding the said order, and notifying that they [the defendants] would not accept and receive the goods ordered, and this letter was received by the plaintiff before the goods were separated from the common stock and delivered to the railroad for shipment; that after this the plaintiff delivered the goods ordered to the railroad, and shipped them consigned to defendants at Willacoochee, Georgia, but the defendants declined to receive the goods, and allowed them to remain in the depot, and notified the plaintiff of their refusal to accept them; that the goods ordered and described in the order hereto attached were articles of merchandise kept in common stock and sold generally by the plaintiff; that there was no consideration for the contract not to countermand the order which appears at the bottom of the order; that the cherry phosphate Ford bought from Moore was not salable; that he still has the greater part of it on hand; tried to give it away to induce trade, but it rather had the effect to run off trade, and was worthless, but Ford does not know whether this he bought from Moore was from the same house [plaintiff's] or not, and does not know how long Moore had had the said barrel in stock prior to this purchase from Moore." The presiding judge rendered a judgment in favor of the defendants for costs, whereupon the plaintiff made a motion for a new trial, which being overruled it excepted. The grounds of this motion were that the verdict was contrary to law and to the evidence. The answer of the defendants raises two questions: First. Are the defendants liable to the plaintiff under the contract notwithstanding the fact that the order for the goods was countermanded before delivery, and notice given to the plaintiff before shipment that the defendants would not accept and receive the goods which they had ordered? Second. Should the action on open account abate because the defendants, if liable at all, were only so in an action to recover damages for a breach of the contract?
1. We find no difficulty in disposing of the first of these questions. The contract made by the parties was a good and valid one, in writing, by the terms of which plaintiff agreed to sell and deliver to the defendants certain goods named therein, and the defendants agreed to pay for the same when so delivered. It was an executory contract, and bound both parties. Without any regard to the entry which appeared below the signature of the parties,--that the order was not subject to countermand,--it may be stated in general terms that, as the contract was the act of both of the parties, it could not be legally dissolved and rendered nugatory except with the consent of each; and the countermand and notice to the plaintiff that the defendants would not be bound by its terms did not have the effect of rescinding the contract unless the plaintiff agreed to such rescission. It appears from the agreed statement of facts that the plaintiff did not so agree; hence no rescission of the contract was effected.
2. The second proposition raised by the plea--that if the plaintiff had any right of action it was for damages for a breach of the contract, and not on open account to recover the price of the goods--is one more difficult of solution. In legal effect, this part of the plea is to be treated a plea in abatement of the action. Under it the question arises whether the notice of the countermand which defendants gave plaintiff in advance of the time of performance was effectual to cause a breach of the terms of the contract. It is undoubtedly true, as a general rule, that, after the breach of an executory contract by either party, the only remedy of the other is to recover such damages as he may have sustained in consequence of the breach. If the notice did not, under the law, cause a breach of the contract, then the seller would have the right to perform his part of the contract and force the buyer to comply with his obligation; that is, pay the contract price for the goods. But the authorities differ as to the effect of a notice that the buyer will not, at the time fixed for the performance of the contract, accept the goods purchased. By some eminent law writers, and in many adjudicated cases, the proposition is laid down that "the notice of an intended breach will operate as a breach only if accepted and acted upon as such by the other party, who may, if he pleases, disregard the notice and insist upon performance according to the contract." Leake, Cont. 872. Mr. Parsons, in his Law of Contracts (volume 2, *676), says: "If one bound to perform a future act, before the time for doing it declares his intention not to do it, this is no breach of his contract but, if his declaration be not withdrawn when the time comes for the act to be done, it constitutes a sufficient excuse for the default of the other...
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