Phillips-Jones Co. v. Blackstock

Jenkins, J.

' (After stating the foregoing facts.) It is con-, tended by counsel for the plaintiff that this additional testimony. adduced upon the second trial entitles the plaintiffs to-recover under section 4131 of the Civil Code'(1910), which provides, that, ‘‘If a purchaser refuses tó take and pay for goods bought, the seller may . . store or retain the property for' the vendee and sue him for the entire price.” With' this contention, however, we can not agree." As stated in the former decision in this ease, “It is undisputed that (as shown by-the'testimony of' Phillips)' a'director .and the-general manager of the plaintiff) the’, defendant's eountermanded the order for the shirts several months prior to the delivery, to the carrier. .Phillips- admitted receiving'a letter-from the defendants on October-24) 1913,' cancelling the order, á.nd &" letter from them on November 28, 1913, again cancelling the ordéir, and notifying the plaintiff that they would not accept the goods.' The goods, were-delivered to the'carrier, as alleged in the petition on April 30, 1914.’’-. The evidence further shows that after the failure"-of the defendants to accept the "goods upon arrival at destination, and prior to the bringing of this suit, the plaintiff ordered their return, and a portion of the- goods-were lost in transit; and'while the witness testifies that the goods ordered by 'the defendants" are .now stored -at the plaintiff’s factory) his testimony further shows that'this,-is not true as'to' all- of them,'and fails to disclose’ what portion of them is thus actually held'; The evidence 'thus fails to prove the ease as laid, in that i-t shows that at least’ portion of the goods as ordéred is not now and' was- not at the time the suit-was instituted stored for the vendee. . Inour opinion,- the evidence brings this case squarely within.the rulé announced by the .Supreme Court in Rounsaville v. Leonard Mfg. Co., 127 Ga. 735. (56 S. E. 1030). Here, as in that case, the plaintiff failed to pursue, the- remedy on which he attempts 'to rely, as provided- by section-4131 of the Civil Code. Oklahoma Vinegar Co. v. Carter, 116. Ga. 140 (S. E. 378, 59 L. R. A. 122,.94 Am. St. E. 112.) In the instant case- the vendor originally' undertook, not to -store the goods for the defendants, but to deliver thém to the defendants; and-in.attempting to make the-unauthorized delivery a portion of' the goods was lost. The delivery of the original shipment, to common carrier being unauthorized, it did not-amount to a deliver^to the vendees; and since the-requirement of section 4131 relative" to the storage of goods by the vendor, on which the claim is based, has not nnder any possible theory or contention been complied with, the court did not err in granting a nonsuit.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.