Studebaker Corp. of America v. Smith

133 S.E. 40, 35 Ga. App. 279, 1926 Ga. App. LEXIS 695

• Court: Court of Appeals of Georgia
• Decided: April 20, 1926
• Docket: 16748
• Status: Published

Opinion

Jenkins, P. J.

Under the provisions of the consignment contract, the consignor could take back the shipment within eight months from the invoice date, only by refunding the freight charges advanced by the consignee; but after the expiration of eight months from the date of the shipment the consignor could, without refunding the original freight charges advanced by the consignee, order the return or reshipment of the goods by prepaid or equalized freight, and would be further entitled to an agreed ten per cent, to cover depreciation. The record conelu-. sively shows that after the expiration of about two years from the date of the shipment the consignor exercised its option under the contract, by calling for a return of the goods, freight prepaid, plus ten per cent, agreed depreciation; that the consignees recognized that the consignor was exercising such option, and agreed in writing to respond in accordance with “the provisions of the consignment agreement.” Consequently, in a suit by the consignor for the ten per cent, agreed depreciation, plus reshipping freight charges, there could be no judgment in favor of the defendant consignee under the theory that the action of the consignor in ordering such reshipment amounted to a mere revocation of the agreement, and this is true even though a traveling representative of the consignor may have stated to the defendant consignee that the goods had been sold to another, f. o. b. the town of the consignee’s residence.

Judgment reversed.

Stephens and Bell, JJ., concur. H. M. Fletcher, for plaintiff.