Howell v. Maine & Co. , 127 Ga. 574 ( 1907 )

Atkinson, J.

1. Under the view we take of this case, the written contract would not be complete until approved and accepted by the plaintiffs at their home office in Iowa City. That being true, it was competent for the defendant to plead and prove the things alleged in the -amendment to the plea. If the defendant as a matter of fact contracted with the salesman of the plaintiffs for an $80 order only, and signed the order which contained the list of articles valued at $180, but upon the understanding that the agent should mark off so many of the articles as to reduce the order to an assortment of $80, it being agreed at the same time that the order should not constitute a contract until approved and accepted by the principals; and if the agent reported these agreements to the principals at the time of sending in the order, so as to give them information before acting upon the order; and the principals, with notice of such -facts, did not approve the order for $180 worth of jewelry, but approved it for $80 worth, it would only be a binding contract for that amount. The proposed amendment to the plea having set forth in substance that all of these matters occurred in the manner stated, it was erroneous for the court to refuse to allow the same. From what has been said it is evident that the court also committed error by refusing to admit in evidence the letter referred to in the 4th ground of the amended motion for new trial, and likewise the testimony of Howell, as referred to in the 5th ground of the amendment.

2. The testimony of the witness Howell which is referred to in the 6th ground of the amended motion for new trial would have been admissible had the proper foundation been shown therefor. Before the matters referred to therein would be admissible, the burden would be upon the defendant to show affirmatively that the attorney Walker was the representative of the plaintiff, with authority to act. There was no evidence to show any such' relation between the attorney Walker and the plaintiffs, and it would have been proper for thé court to exclude this evidence upon that ground.

Judgment reversed.

All the Justices concur, except Fish, G. J., absent.