Stokes v. Walker
| Decision Date | 02 April 1974 |
| Docket Number | No. 49033,No. 1,49033,1 |
| Citation | 206 S.E.2d 564,131 Ga.App. 550 |
| Parties | Clyde W. STOKES v. Charles I. WALKER |
| Court | Georgia Court of Appeals |
Preston L. Holland, Hapeville, for appellant.
Cotton, Katz & White, J. Christopher Simpson, Atlanta, for appellee.
Syllabus Opinion by the Court
This is an appeal by Stokes from an adverse money judgment rendered against him as defendant below in a suit brought by Walker for breach of contract.
The document involved was dated August 25, 1970, and provided for a grant by Stokes to Walker of a geographical territory for the distribution of a specific brand of machines used for cleaning automotive cooling systems. Under the contract captioned 'Lease Agreement and Product Order' Walker leased four machines for a stipulated monthly rental which was to begin in January 1971 and purchased and paid for 400 units of a specific brand of chemical product.
Two provisions of the contract dealing with cancellation are pertinent to this appeal. One which was numbered 4 was a part of the mimeographed portion. It read: 'Distributor may cancel lease on ten days written notice provided all lease payments are current and machines have been returned to company warehouse prepaid.' The other paragraph designated as 3c was typed in at plaintiff's request. It provided that 'Company agrees to buy back all unsold products in event of cancellation.'
Within less than three months, plaintiff on November 13, informed defendant by telephone that he was exercising his right of cancellation under the terms of the contract. He confirmed this by subsequent registered letter dated November 25, 1970, constituting the written notice required by paragraph 4. In his letter he added that 'The machines have not been returned to the company warehouse prepaid as required in term 4, due to your request for their retention in Decatur, Alabama, until another distributor is located.' (T. 79). This letter also confirmed the distributor's exercise of the typewritten provisions of paragraph 3c for resale of the full amount of the original chemical product.
The instant suit for breach of contract was subsequently filed and was tried before a judge without a jury. The transcript of testimony shows a disagreement between the parties as to the details of the November 13th telephone conversation in that defendant-appellant contradicted plaintiff-appellee as to plaintiff having made a legal tender of the four machines. One of these machines had been placed at a Decatur, Alabama, service station and was subsequently lost.
The trial judge's findings of fact on all questions were favorable to plaintiff. One of these read: 'The court further finds that tender of the machines was made to defendant but that defendant waived delivery and encouraged plaintiff to continue holding the product and the machines where located at the time of cancellation.' An additional finding of fact was that the contract gave the plaintiff the right of cancellation and that the plaintiff had fulfilled his obligations thereunder as evidenced by the letter of November 25, 1970.
After judgment was rendered for plaintiff the defendant took this appeal.
1. 'Where a contract provides that there must be a tender of money or a performance of some obligation, the party bound to make the tender or perform the obligation may be relieved, and the tender and obligation held to have been waived, where the other party to the contract repudiates it, by act or word, or takes a position which would render tender or performance of the obligation imposed useless or impossible.' Blount v. Lynch, 24 Ga.App. 217, 221, 100 S.E. 644, 646. See Code §§ 20-1104 and 20-1105. Therefore, even if, as defendant asserts, plaintiff distributor did not properly tender the machines, he was relieved of that obligation when defendant instructed him to keep the machines where they were. Such conduct by defendant...
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Southern Business Machines of Savannah, Inc. v. Norwest Financial Leasing, Inc.
...or takes a position which would render tender or performance of the obligation imposed useless or impossible.' " " Stokes v. Walker, 131 Ga.App. 550, 552(1), 206 S.E.2d 564; accord Rives E. Worrell Co. v. Key Systems, 147 Ga.App. 383, 386(4), 248 S.E.2d 686. The record does not contain any ......
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Importers Service Corp. v. Gp Chemicals Equity
...of the obligation useless or impossible." Taliafaro, Inc. v. Rose, 220 Ga.App. 249, 469 S.E.2d 246 (1996) (citing Stokes v. Walker, 131 Ga.App. 550, 552, 206 S.E.2d 564 (1974), and O.C.G.A. § 13-4-23). Thus, it is theoretically possible to create a question of fact for the jury on impossibi......
- Parr Realty Co. v. Carroll, 49025
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Rollins v. Gault, 58790
...releases the other party from any further duty to comply with the contingencies as a condition precedent to suit. Stokes v. Walker, 131 Ga.App. 550, 552, 206 S.E.2d 564 (1974); Blount v. Lynch, 24 Ga.App. 217, 221, 100 S.E. 644 Judgment affirmed. McMURRAY, P. J., and BANKE, J., concur. ...