National Novelty Import Co. v. Bowen & Fine , 27 Ga. App. 377 ( 1921 )

Stephens, J.

1. This being a suit to recover the contract price for a lot of merchandise alleged by the plaintiff to have been sold and shipped to the defendant, and it appearing that the contract entered into between the parties was entire and not severable, and there being evidence in support of the defendant’s plea that part of the goods delivered to him by the plaintiff were materially different from the goods contracted for, and that the defendant upon discovering this fact immediately canceled the contract and returned the entire shipment of goods to the plaintiff, less an amount sufficient to reimburse the defendant for freight charges on the goods expended by him and chargeable to the plaintiff, the verdict for the defendant was authorized. Main v. Simmons, 2 Ga. App. 821 (59 S. E. 85); Elgin Jewelry Co. v. Estes, 122 Ga. 807 (50 S. E. 939); Snellgrove v. Dingelhoef, 25 Ga. App. 334 (103 S. E. 418).

2. The court did not err in refusing to strike the defendant’s plea or in instructions to the jury.

Judgment affirmed.

Jenkins, P. J., and Hill, J., concur. Kirkland & Kirkland, for plaintiff. C. W. Turner, for defendants.