Walnut Creek Milling Co v. Smith Bros. Co

• Decision Date: 07 April 1934
• Docket Number: No. 22457.,22457.
• Citation: 174 S.E. 255,49 Ga.App. 116
• Parties: WALNUT CREEK MILLING CO. v. SMITH BROS. CO.
• Court: Georgia Court of Appeals

49 Ga.App. 116

174 S.E. 255

WALNUT CREEK MILLING CO.

v.SMITH BROS. CO.

No. 22457.

Court of Appeals of Georgia, Division No. 2.

April 7, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by the Walnut Creek Milling Company against the Smith Bros. Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Conforming to answers of the Supreme Court to certified questions in 173 S. E. 95.

Wright, Jackson & McClure, of Augusta, for plaintiff in error.

W. Inman Curry and Wm. M. & Henry G. Howard, all of Augusta, for defendant in error.

Syllabus Opinion by the Court.

In answers to questions certified to it in this case, the Supreme Court has held that under a written contract for the purchase of a number of barrels of "Snoflour" brand of flour the purchaser is entitled to show by parol that the vendor represented that the brand sold was in all respects equal in quality to another brand known as "Elberta, " with which the vendee was familiar. Walnut Creek Milling Co. v. Smith Bros. Co. (Ga. Sup.) 173 S. E. 95. On the trial of a suit for damages by the vendor on account of the vendee's failure to accept the undelivered portion of the goods contracted for, there was proof which authorized the jury to find that the commodity sold under the brand of "Snoflour" was greatly inferior in quality to the brand known as "Elberta." Such being the case, the purchaser was under no obligation to take the portion of the "Snoflour" brand which remained undelivered; and a verdict in favor of the defendant generally was authorized in accordance with the charge of the court, which correctly submitted these principles of law. This ruling is not in conflict with the principle adopted by the Courts of this State to the effect that, where goods are to be delivered in installments, and a portion is delivered and paid for by the purchaser, he cannot thereafter rescind as to the remain-der of the contract merely upon the ground that the portion received and accepted by him did not come up to the specifications as to quality expressed and described by the seller's warranty. See Civ. Code 1910, §§ 4136. 4137; Henderson Elevator Co. v. North Ga. Milling Co., 126 Ga. 279 (2-4), 282, 283, 55 S. E. 50; Willett Seed Co. v. Kirkeby-Gunde-strup Seed Co., 145 Ga. 559 (1-3), 89 S. E. 486. The reason for this rule is that the purchaser, under such circumstances, will not be permitted to assume that the remaining shipments will fail to...