Cannon v. Atlanta Warehouse Co. , 25 Ga. App. 350 ( 1920 )

Stephens, J.

1. Where a warehouseman, who has cotton on storage for the purpose of selling it for the owner, communicates to the owner an oiler which the warehouseman has received from a prospective buyer to buy the cotton, and the owner accepts the offer and authorizes the warehouseman to make the sale, there arises a contract between the owner and the warehouseman authorizing the warehouseman to sell the cotton upon the terms of the offer, and a sale by the warehouseman at a less price constitutes a breach of this contract, and the warehouseman is liable to the owner for the difference.

2. Where such a warehouseman was authorized by the owner by telegraph to sell the cotton “ for best basis obtainable,” and the warehouseman replied by telegraph that there was no market that day, but that he would “sell cotton best advantage to-morrow,” but on the morrow, without acting upon such instruction, the warehouseman communicated to the owner, “ subject to immediate reply,” a special offer which he had received for the sale of the cotton, the warehouseman thereby waived the right, if he had any, to sell the cotton under the authority which he had received the day before. Moreover, the instruction from the owner to the warehouseman to sell the cotton “ for best basis obtainable,” being by telegraph and containing authority to sell a commodity which, as is well known, fluctuates from day to day and from hour to hour, is to be construed as authority for an immediate sale only, and not for a sale upon the day following.

3. Where the warehouseman communicates with the owner by telegraph and informs the latter of an offer which the warehouseman has received for the cotton, “ f. o. b. Atlanta,” and the owner replies that the offer is accepted “'f.o.b., Alma,” the warehouseman has authority to sell the cotton “f. o. b. Alma,” and not “f. o. b. Atlanta,” and where he sells the cotton “ f. o. b. Atlanta,” which is at a lesser price than “ f.o.b. Alma,” the owner may sue for a breach of contract to recover the difference. This is true notwithstanding the fact that the telegraph company, in transmitting the telegram from the warehouseman to the owner, erroneously caused it to read “f.o.b. Alma” and the owner understood that he was accepting in its entirety the offer communicated to him by the warehouseman.

Judgment reversed.

Jenkins, P. J., concurs. Smith, J., dissents.

The court rendered judgment in favor of the defendant, and the plaintiff excepted, assigning error on the ground that the pleádings and the evidence demanded a verdict for the plaintiff, and that the judgment is against the weight of the evidence and contrary to law and the principles of justice and equity.

Branch & Howard, Bond Almand, for plaintiff. Candler, Thomson & Hirsch, for defendant.