Electric Paint & Varnish Co. v. Lunsford

Stephens, J.

1. Where, after the execution of a contract for the sale of personal property, which contains no provision for a cancellation, the seller, before delivering the property, is notified by the purchaser not to do so, and where the seller afterwards delivers the property to the purchaser, and the purchaser refuses to accept it and ships it back to the seller, at the same time notifying the seller of the return of the property, and where the seller notifies the purchaser that the seller is “not accepting the shipment for credit,” and notifies the purchaser to recall the shipment from the transportation company and to pay the seller the contract price, and where the seller afterwards accepts the returned goods from the transportation company, but does not accept the goods for credit, and puts them in storage, subject to the purchaser’s order, the seller has not accepted the tender of the breach of the contract by the purchaser, and therefore has a right to rely upon the contract, and to recover of the purchaser the contract price.

Decided March 3, 1933. Joseph B. McQinty, for plaintiff. Z. B. Rogers, Ciarle Edwards Jr., for defendants.

2. In this case, in which the facts were as stated above, the seller was entitled to recover the contract price, and the verdict found for the defendant was without evidence to support it.

Judgment reversed.

Jenkins, P. J., cmd Sutton, J., concur.