Herbner & Son v. Cuero Cotton Oil & Manufacturing Co. , 25 Ga. App. 440 ( 1920 )

Luke, J.

(After stating the foregoing facts.) The opinion of the majority of the court is as follows: “We do not think that the formal written contract which the defendant refused to sign contained any material variations from the 'telegraph contract’ which had been previously agreed to by both parties. Conceding, however, for the sake of the argument, that it did, the telegraph contract had already been agreed to by both parties and was valid and binding upon both, and the plaintiff’s effort to vary it by the suggested changes was without avail and did not amount to a repudiation of it, and the contract stood as previously agreed to by both parties. The evidence plainly'showed a breach of that contract by the defendants, and the judgment for the plaintiff was not only authorized but demanded. It follows that the court did not err in refusing to award a nonsuit or in rendering a judgment for the plaintiff. The court’s rulings upon the pleadings and the admissibility of evidence show no material error, especially since, by consent, the judge was sitting without the intervention of a jury, and in such a case 'the niceties of the law touching the admissibility of evidence before a jury are of little weight.’ ”

The writer’s’ view of the case is as follows: The first and controlling question to be considered is whether there was a binding contract between the plaintiff and the defendants. Did the defendants accept a contract the like of which the plaintiff understood its broker had agreed to for it with the defendants. It is a well-settled principle that the agent must act for his principal within the scope of his authority. The principal (the plaintiff), immediately upon its agent furnishing the written terms of the contract of sale, made alterations and amendments to the contract, and advised its agent that such alterations and amendments were necessary, by stating that the contract was all right with the exception of such amendments and changes. The letter referred to only two exceptions, but the contract itself carried three material changes. The contract as prepared with such alterations and changes was the only contract that the plaintiff accepted in writing. The defendants never accepted it, and in my opinion are not bound by it until they do accept it. It is clear to my mind, as stated in Kohl’s letter to the plaintiff when the contract was enclosed and before it was altered, that the writing expressed what Herbener & Son and Keid understood the contract was to be. It is also clear that the plaintiff did not so understand it. It is clear, therefore, that the minds of Herbener & Son and of the plaintiff did not meet as to the terms, and the fact that Herbener & Son were telegraphed by the plaintiff that the changes were immaterial and would be waived could not act as a mandamus which in effect would then require their acceptance of the contract. In other words, the plaintiff could not forward a contract with certain terms in it for acceptance by the defendants, and, after the defendants’ refusal so to accept, waive, certain of its conditions and demand an acceptance. In fact there was no contract between the plaintiff and the defendants until acceptance by the defendants of the contract as sent to them by the plaintiff. When the agent of the plaintiff sent to it the contract, which did not express the terms as understood by the plaintiff, a ratification could have been had of the acts of the agent, by accepting the contract that the agent had entered into. Instead of there being a ratification, there was a repudiation, and such repudiation was evidenced by the alterations and changes made by the plaintiff. As contended by the plaintiff, they may not have been so very material, and as suggested by the broker, in his opinion, they may have been advantageous, but the defendants had the right to select the terms upon which they were willing to trade. I do not think the evidence authorized the judgment. See Florida Midland & Georgia Railroad Co. v. Varnedoe, 81 Ga. 175 (7 S. E. 129); Candler Investment Co. v. Cox, 4 Ga. App. 763 (62 S. E. 479).

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur. Luke, J., dissents.