Helmer v. Wilson & Co. , 1924 Ga. App. LEXIS 444 ( 1924 )

Broyles, C. J.

(After stating the foregoing facts.)

1. The contention that the court erred in striking, on written motion, certain parts of the original plea and in sustaining the plaintiff’s oral demurrer to the amendment to the plea, is without merit. The facts alleged in the portions of the plea stricken and in the amendment were, in effect, that there was no binding legal contract as declared upon by the plaintiff, because the plaintiff had failed and refused to provide and furnish (as it had agreed to do in its letter of July 14, 1920) a formal or special written contract covering the sale of the butter in question. Such a defense might have .been good but for the fact that it affirmatively appears, from the allegations of the defendant’s cross-action, that he stood upon and affirmed the existence of the contract sued upon, since, in addition to admitting that he owed plaintiff $987.34 for butter ordered out and delivered under the terms of the contract, he alleged that he was entitled to recover of the plaintiff because the latter, “according to the contract as agreed upon,” was to deliver all of the butter purchased, “not later than November 31st, 1920,” and that “when plaintiff did not deliver said butter by December 1st, 1920, nor offer to deliver same, this defendant went to the plaintiff and demanded said butter.” These facts amounted to a solemn admission in judicio that there was a valid existing contract, and that the defendant was demanding his legal rights thereunder, notwithstanding the plaintiff had failed to furnish a formal written contract as it had agreed to do. As was said by this court in the ease of City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464 (65 S. E. 315), “pleadings are construed most strongly against the pleader, and where a plea both admits and denies the execution of a contract which binds the pleader and the adverse party to mutual obligations, the admission, and not the denial, must prevail.” See also, to the same effect, Williams Mfg. Co. v. Warner Refining Co., 125 Ga. 408, 411 (54 S. E. 95).

2. The main contention of the defendant, as presented by his motion for a new trial, is that the undisputed facts adduced upon the trial were legally insufficient to authorize a recovery by the plaintiff, because they indisputably showed that the plaintiff (and not the defendant) breached the contract, by failing to deliver or tender the remaining 172 tubs of butter on or before November 30, 1920, as it had contracted to do. We cannot agree with this contention. In addition to the terms of the contract as contained in the letters exchanged between the parties, quoted in the statement of facts, the evidence developed the following facts: The defendant was engaged in the manufacture of ice cream and purchased from the plaintiff a large quantity of sweet butter to be used by him in his business from time to time over a period of several months. The butter purchased was what is known as unsalted butter, and in order to preserve it a very low temperature was required. Neither the plaintiff nor the defendant had a suitable place to store the large quantity of butter purchased. In fact, when the contract was made, there was no place in Atlanta where a storage of this kind could be obtained. It was, therefore, agreed that the plaintiff should store the butter in Birmingham, the nearest point available for such storage. It was distinctly agreed that the defendant should order out, from week to week, the amount of butter required by him in the manufacture of ice cream. The defendant did actually order out a sufficient quantity of butter, from week to week, to meet the requirements of his business, until he had used all the butter purchased except 172 tubs, paying in full for all the butter used except the last shipment, made on November 22, 1920, which constituted 25 tubs of the value of $986.32.

Viewed in the light of these facts, we cannot hold that the evidence demanded a finding that the plaintiff breached the contract because it failed to deliver or tender on or before the 30th of November, 1920, the 172 tubs of butter not ordered out. Where, in an executory contract of sale, it is provided that the purchaser shall order out the merchandise from time to time, all to be ordered and taken out by a certain date, the seller is not required, in the absence of an order, to deliver or tender to the purchaser, on the last day, the merchandise not ordered out. In such a contract it is not obligatory on the part of the seller to deliver until the purchaser has ordered. See, in this connection, Lee v. Bewley-Darst Coal Co., 22 Ga. App. 693 (97 S. E. 99); Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524, 530 (96 S. E. 583); Gude v. Bailey Co., 4 Ga. App. 226 (61 S. E. 135); Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (58 S. E. 200); Maddox v. Wagner, 111 Ga. 146 (36 S. E. 609). The rule is clearly stated in the case of Scruggs v. Riddle, 171 Ala. 350 (54 So. 641), as follows: “Where a party to an executory contract of sale of goods has as-sinned the duty to do some precedent act upon which a subsequent act, looking to a consummation of the sale by the other party, depends, the former has not complied with his obligation until he performs, and the latter is not in default so long as the former has not performed, provided of course, there was or has been no waiver by the latter of performance by the former.”

Moreover, the evidence shows that about a week prior to November 30, 1920, one of the plaintiff’s agents, a Mr. Crowder, went to the defendant’s place of business and, finding that he was out, took up with a Mr. Goodrich, who was acting as manager of the defendant’s business, the question of the disposition of the 172 tubs of butter not ordered out. A plan was adopted by these representatives of the plaintiff and the defendant whereby the contract then in existence was to be carried into effect, it being agreed that the butter not ordered out was to be charged to the defendant’s account, but was to remain in storage in Birmingham; and, in order to save extra charges, it was to remain stored in the name of the plaintiff, and to be ordered out by the defendant from time to time as he "required it in his business. This plan was binding upon the defendant, and operated to extend the time in which the butter was to be ordered and taken out. See, in this connection, William Alsberg & Co. v. Harper Mfg. Co., 31 Ga. App. 586 (2) (121 S. E. 586). It is true that the conversation between Crowder and Goodrich in reference to this plan was objected to by the defendant, on the ground that there was no evidence showing that Goodrich had authority to bind the defendant in this respect; but there was no substantial merit in this objection, since the evidence shows that Goodrich signed the' only letter written by the Gate City Dairy Company which passed between the parties.and which consummated the sale, and two witnesses testified that Goodrich was manager, and one of them testified also that Goodrich transacted all the business for the Gate City Dairy Company. The defendant himself testified that when he- was out of town Goodrich acted as manager of the business.

3. The grounds of the motion for a new trial not disposed of by the foregoing rulings, when considered in the light of all of "the particular facts of the case and the charge of the court as a whole, are without substantial merit and do not require a reversal of the judgment below.

Judgment affirmed.

Lulce and Bloodworlh, JJ., concur.