Emerick Candy Co. v. Newton & Brother , 27 Ga. App. 489 ( 1921 )

Hill, J.

(After stating the foregoing facts.) The contention of the defendant in error is that the contract is an entire contract and that there has been a rescission of it, and that therefore the plaintiff was not entitled to a judgment for any amount. The evidence introduced, as shown by the record, is very meager and leaves wide room for inferences. The order given for the goods seems to have been undoubtedly accepted, and apparently there must have been an agreement as to price; as there seems to have been an understanding as to what was meant by “6^ goods.” Was there a rescission of the contract? Newton & Brother requested the candy company to discontinue shipments on the orders “ until further advised.” The candy company replied that they had the letter “ requesting cancellation/’ and that it had been done. Newton & Brother had never requested “ cancellation.” They had requested a discontinuance of the shipments until further advised. This letter was not received by the candy company until three days after the candy company had made the shipment for which the suit was brought. In our opinion this did not amount to a rescission of the contract. The “ cancellation ” dated only from the date on which it was agreed to. Under the provisions of the code, acceptance of a proposition by letter is from the time the written acceptance is sent. Civil Code (1910), § 4231, There is no evidence in the record to show that Newton & Brother objected to the cancellation” of the order. As the shipment sued for had been sent by the candy company prior to the date of this “ cancellation,” and as the shipment was duly received by Newton & Brother, we are of the opinion that it was obligatory upon them to pay for the goods, and that the judge of the superior court erred in sustaining the certiorari and remanding the case to the municipal court for a new trial.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.