Frank & Meyer Neckwear Co. v. White , 1923 Ga. App. LEXIS 169 ( 1923 )

Jenkins, P. J.

The vendor sued .the vendee upon open account for the purchase price of 28-% dozen neckties. The undisputed evidence at the trial shows that in May, 1920, the defendant gave to the plaintiff’s salesman an order for certain ties of varying patterns, duplicate copies of which order, though filled out by the salesman, were not signed by the defendant. One copy was sent to the plaintiff, and another was left by the salesman with the defendant. Shipment as provided by the order was to be made by October 1, 1920, by express from St. Louis, Missouri, where the plaintiff was located, to Macon, Georgia, the place of business of the defendant. Plaintiff construed this order to mean that 30 dozen ties of varying patterns and quantities of each pattern were thus purchased. The defendant, called as a witness for the plaintiff, testified that he had only ordered 13 dozen ties, and so construed his duplicate copy of the order. On September 17, 1920, the plaintiff delivered to the express company at Louis for shipment to Macon 28-% dozen ties, for the purchase price of which it now sues, and offered evidence to show that it did not send the full 30 dozen because at the time the order was filled it did not have on hand enough material of the patterns of the missing l-% dozen. On September 24, 1920, after receipt of the 28-% dozen ties, the defendant wrote to the plaintiff referring to plaintiff’s invoice of September 18 as being for 28-11/12 dozen ties, “ while our duplicate is only for 13 dozen ties. We can’t understand this difference. Please let us hear at once.” On September 30 he again wrote making the same complaint that too many ties had been shipped to him. On October 23 the defendant by letter advised the plaintiff that he was shipping back all the ties, and then made the additional complaint that the ties “do not have our label in them.” On October 28 he again by letter to the plaintiff referred to the return of the ties, and stated that they were “ not according to our duplicate,” and asked a credit memorandum for them. On November 3 he wrote advising that he would leave the ties with the express company at plaintiff’s disposal, stating, as grounds of complaint, that no labels were furnished, and that plaintiff “should know, with five years dealings'with ús, that we desire them,” although, as he states, “labels were not specified with order,” and that there was an understanding with the agent to protect him against any decline in the price, and he again refered to to his copy of the order, as follows: “ While you state the ties were made up exactly in accordance with our order, our carbon copy calls for only 13 dozen assorted patterns and numbers. We note on your order you have each of the assorted numbers totalled. Why didn’t Mr. Pittman total it thus on our carbon copy, if he was reasonably sure that we wanted dozens of each number, instead of assorted numbers to the dozen.” On December 3 the defendant again wrote the plaintiff, “We know our duplicate only called for 13 dozen ties,” and relied upon his duplicate copy in making the contention that only 13 dozen had been purchased. On December 11 he wrote in a final letter'to the plaintiff, “ We will only accept the 13 dozen ties that our duplicate calls for,” provided the plaintiff allowed his contentions as to labels and revision of price. Both the duplicate copy of the order left with the defendant and the copy sent to the plaintiff by the salesman were offered in evidence, without objection. Both appear exactly alike as to quantities and prices for each lot or dozen, except that the company’s copy contains certain additions made by it or its agent in footing up the total amounts of the prices, and in adding certain other numbers in columns marked “ Salesman not use,” and the defendant’s copy contained a stamped guaranty with reference to lowering of prices. On December 27, 1920, and January 10, 1921, the defendant wrote to the express company at St. Louis directing it to return the goods to him at Macon if the plaintiff would not accept the shipment. The plaintiff having refused the shipment, upon the defendant’s order the goods were returned to him by the express company, and he testified, “ I have got them and had them ever since.” With reference to his grounds of objection to the goods after delivery to him, the defendant testified, “ I never did make any objection—-I don’t think—'because too few ties were shipped; I don’t make any. now. There were too many shipped, more than I had bought. That’s the first thing I told them in my letter; and right up to the present time I make no contention that there were too few ties shipped. The defendant moved for a nonsuit, (1) because the plaintiff had ,not pursued either of the remedies provided in section 4131 of the Civil Code relating to the remedies of a seller in case of default by a buyer; (2) that as only 28-% dozen ties had been shipped, and according to plaintiff’s contention the contract provided for 30 dozen, the plaintiff, having failed to comply with its contract, could not recover; and (3) that the contract, providing for a sale of goods, wares, and merchandise exceeding the value of fifty dollars, and not being in writing, was within the provision of the statute of frauds as embodied in section 3222 (7) of the Civil Code, and nothing was shown to take it out of the statute, under any of the exceptions stated in that or the following code section. The plaintiff excepts to the order granting the nonsuit.

It is not necessary to add anything further to the syllabus.

Judgment reversed.

Stephens and Bell, JJ., concur.