Toggle v. Sons

• Decision Date: 30 January 1918
• Docket Number: (No. 8907.)
• Citation: 21 Ga.App. 723,94 S.E. 908
• Parties: TOGGLE . v. R. M. GREEN & SONS.
• Court: Georgia Court of Appeals

94 S.E. 908

(21 Ga.App. 723)

TOGGLE .

v.R. M. GREEN & SONS.

(No. 8907.)

Court of Appeals of Georgia, Division No. 2.

Jan. 30, 1918.

(Syllabus by the Court.)

Error from Superior Court, De Kalb County; C. W. Smith, Judge.

Action by R. M. Green & Sons against H. C. Tuggle. Judgment for plaintiff upon a directed verdict, and defendant brings error. Reversed.

L. J. Steele, of Decatur, and Moon & Candler and Lovick G. Fortson, all of Atlanta, for plaintiff in error.

Little, Powell, Smith & Goldstein and Moise & Riddell, all of Atlanta, for defendant in error.

BLOODWORTH, J. A written contract for the sale of a soda fountain and accessories was made between Green & Sons and H. C. Tuggle, doing business as H. C. Tuggle Drug Company. The goods were shipped in accordance with the contract, and on arrival at destination were declined by the purchaser and the sellers brought suit under section 4131 of the Civil Code of 1910 for the entire purchase price thereof. The petition in part alleged:

"(4) That your petitioners according to the terms of said contract thereupon stored said soda fountain for the use of H. C. Tuggle, notified him thereof, and elected to sue for the entire price, $650, less the payment of $32.50 made with the order.

"(5) That your petitioner paid out for freight on said soda fountain and accessories from Philadelphia to Stone Mountain, and storage at Stone Mountain, $43.89, and for freight from Stone Mountain to Atlanta and drayage at Atlanta, $8.11. Also they paid out $2 for storage of said fountain for the first month, beginning January 5, 1916, and will have to pay out $2..for each additional month of storage."

Under these allegations, which were denied by the plea, it is a condition precedent to any recovery that the proof show that the goods were stored for the vendee (Okla homa Vinegar Co. v. Carter & Ford, 116 Ga. 140 [2], 146, 42 S. E. 378, 59 L. R. A. 122, 94 Am. St. Rep. 112; Rounsaville & Bro. v. Leonard Mfg. Co., 127 Ga. 735 [4], 740, 741, 56 S. E. 1030; Georgia Agricultural Works v. Price, 11 Ga. App. 80 [1], 82, 74 S. E. 718; Southern Flour Co. v. St. Louis Grain Co., 11 Ga. App. 403, 75 S. E. 439), and to' recover for freight, storage, and drayage the proof must show that these specific items of expense were incurred.

Before suit can legally be brought for the entire purchase price of goods shipped by common carrier as in this case, the seller must relinquish title thereto, and title must pass to the purchaser. The seller cannot retain the goods, and also recover the full purchase price thereof. The contract of purchase in the instant case shows by the following clauses that title was reserved in the seller:

"It being understood and agreed that the title to and ownership of said goods, and the right of possession, shall remain in you [the seller] until payment of the price in full and the receipt by you at your office in Philadelphia of the full amount of the purchase money."

The seller realized that, having retained title, before he could bring suit for the full purchase price he must at least store the goods for the purchaser, as he incorporated in the contract of sale the following:

"Should I/we by our neglect or refusal to pay and/or settle as agreed above, thereby wrongfully refuse to perform the condition upon which time is granted, it is agreed that Lif] the consideration for the grant of time fails, that the full amount of the purchase price shall at once be due and payable, and that in addition to any other remedies you may have at law, you may store and retain the property for me/us, at my/our risk, retaking possession, if already delivered, and proceed, at your option, to recover the entire price, any law, usage, or custom to the contrary notwithstanding."

When the goods in this case were shipped, the bill of lading, with a draft for the purchase price attached was sent to a bank at Stone Mountain, with instructions to the...