Spence Drug Co. v. American Soda Fountain Co. , 11 Ga. App. 473 ( 1912 )

Hill, C. J.

(After stating the foregoing facts.) 1, The Spence Drug Company, in the first place, insisted that there was no completed contract; that the original order was a mere offer to contract, and that this offer had not been accepted as made, in that the American Soda Fountain Company had not accepted it with the words “all setting up expenses” stricken out, and, therefore, that the Spence Drug Company had the right to countermand the order before delivery -of the' soda-fountain apparatus.

Under the evidence, we think the contract was completed. The copy of the order, attached to the letter, was simply a memorandum of the contract. No reference was made to any change, but the order as received was expressly accepted. The original contract, with the words “all setting up expenses” stricken out, was the one sued upon and introduced in evidence. Besides, no claim was made upon the Spence Drug Company for any of the expenses connected with the installation of the fountain. The agent of the American Soda Fountain Company testified that these words were stricken out of the contract for the purpose of making it clear that the Spence Drug Company would not bo called upon to pay the expenses of setting up the fountain. Performance by the plaintiff and the payment by it of the setting up expenses prove clearly that the offer to 'buy was accepted as made. It follows, therefore, that the countermand was in direct conflict with the express stipulations of the contract, and could not avail. Even after the attempted countermand the soda-fountain was shipped to Camilla to the Spence Drug Company and was accepted by it. The shipping and installation of the fountain by the American Soda Fountain Company amounted.to an acceptance of the order, and the acceptance of the fountain completed the contract and made the drug company liable for the price of the fountain as stipulated therein. Harris v. Amoskeag Lumber Co., 97 Ga.. 465 (25 S. E. 519); Sheffield v. Whitfield, 6 Ga. App. 765 (65 S. E. 807).

2. There was no error in refusing to allow the defendant to show by parol an agreement to take the old fountain as part payment. It is not contended that this proposition was made by the soda-fountain company, but it is claimed to have been made by its salesman. Not only was this an effort to vary the terms of the written contract, which expressly stipulated that the purchase-price was so much cash and the balance in deferred payments to be evidenced by notes, but it was also an effort to prove an agreement made with the agent of the soda-fountain company, at variance with the terms of that contract, wherein it was expressly stipulated that no agreement made by the agent except as stated in the written contract should be binding upon the soda-fountain company. Thus the contract put the drug company upon notice that the salesman did not have the right to bind the soda-fountain company by any promise in reference to the old fountain. But to show how groundless this defense is, the evidence does show that the salesman who made this promise had in fact complied with it and had sold the old fountain for the drug company according to his agreement.

3. The defense of partial failure of consideration was not proved, except to the extent of $25, which was allowed as a set-off in favor of the defendant. The witnesses introduced by the defendant for the purpose of supporting the plea of partial failure of consideration did state, in general terms that .there were certain defects in the installation of the fountain, but their testimony was not definite as to these defects, and they did not give any basis for a reduction of the purchase-price on account of these-, defects. A plea of failure' of consideration must be sustained by evidence showing not only the failure of consideration, but the extent of the failure of consideration. The jury must have data presented by the evidence upon which to base a verdict sustaining a plea of this character. Grier v. Enterprise Stone Co., 126 Ga. 17 (54 S. E. 806).

4. There was no error in excluding testimony to the effect that plaintiff had agreed to furnish an “ieeless” soda-fountain and that the one furnished was not of this character. The fountain to be furnished was specifically described in the written contract, and it does not appear that it was to be “iceless.” The effect of this testimony would be to vary the terms of the contract.

We have carefully examined the numerous assignments of error* contained in the amended motion for a new trial, and we fail to find any material error. The evidence demanded the verdict for the plaintiff as directed. Judgment affirmed.