Tuggle v. Green & Sons

104 S.E. 85, 150 Ga. 361, 1920 Ga. LEXIS 182

Opinion

Fish, C. J.

Of course, the decision of the Court of Appeals, when it was first before that court (Tuggle v. Green, 21 Ga. App. 723, 94 S. E. 908), included in the foregoing statement, is the law of the case, and, as between the parties, is conclusive upon all points there presented and decided. Western & Atlantic R. Co. v. Bank, 125 Ga. 489 (54 S. E. 621); Southern Bell Tel. Co. v. Glawson, 140 Ga. 507 (79 S. E. 136); Morrison v. Slaton, 148 Ga. 294, 297 (96 S. E. 452). The answers to the questions certified depend, therefore, upon what was then decided by the Court of Appeals. The headnote, prepared by the court, to the opinion rendered is as follows: “ Before suit against the purchaser for the entire purchase-price of goods shipped by common carrier, as in this case, can be maintained by the seller, title must be relinquished by the seller and must pass to the purchaser. The seller can not retain the goods and also recover the full price.” In the opinion it is said: “ Where the contract is that the defendant is to make a partial cash payment and give notes for the balance, the seller retaining the title until the full purchase-price paid, a tender on terms of the buyer’s compliance with the contract will not have the effect of transferring the title to the buyer. If the buyer refuses to make the partial cash payment, and give notes as called for by the terms of the sale, or to accept any possession or control of the property,, no title passes to him, and the seller’s remedy is not for the purchase-price of the chattel, but for the breach of the contract.” This language is taken from Bridges v. McFarland, 143 Ga. 581, 583 (85 S. E. 856), which is cited, as well as Dilman v. Patterson Produce Co., 2 Ga. App. 213 (58 S. E. 365), and Tufts v. Grewer, 83 Me. 407 (22 Atl. 382).

The Civil Code, § 4131, provides :• “ If a person refuses to take and pay for goods bought, the seller may retain them and recover the difference between the contract price and the market price at the time and place for delivery; or, he may sell the property, acting for this purpose as agent for the vendee, and recover the difference between the contract price and the price on resale; or, he may store or retain the property for the vendee and sue him for the entire price.” In Bridges v. McFarland, and in Dilman v. Patterson Produce Co., supra, as well as in Maddox v. Wagner, 111 Ga. 148 (36 S. E. 609), Oklahoma Vinegar Co. v. Carter, 116 Ga. 140 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112), and Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (56 S. E. 1030), the seller did not “ store or retain the property for the vendee and sue him for the entire price,” but sued for the price in the absence of such condition precedent. In such circumstances an action for the purchase-price will not lie. It was said, however, in the cases of Oklahoma Vinegar Co. and Rounsaville, that the sellers might' have stored and retained the property for the buyers after notice by the buyers that they would not receive the goods, and had this been done the sellers might have brought an action against the buyers for the purchase-price of the goods. We construe the decision of the Court of Appeals in the instant case as adjudicating that, under the facts in the record then before it, no title was shown to have passed to the purchaser, and therefore that the seller could not recover the purchase-price. The language in the headnote, viz., “The seller can not retain the goods and also recover the full price,” evidently means that the seller can not retain the goods for himself, that is, as his own property, and also recover the price thereof.

The opinion of the Court of Appeals, after stating that the purchaser declined to receive the goods upon their arrival at destination, quotes from the petition in the ease as follows: “4. That your petitioners according to the terms of said contract thereupon stored said soda fountain for the use of H. C. Tuggle [the purchaser], notified him thereof, and elected to sue for the entire price, $650.00, less the payment of $32.50 made with the order. 5. That your petitioners paid out for freight on said soda fountain and accessories from Philadelphia to Stone Mountain, and storage at Stone Mountain $43,89, and for freight from Stone Mountain to Atlanta and drayage at Atlanta $8.11. Also they paid out $2.00 for storage of said fountain for the first month, beginning January 5, 1916, and will have to pay out $2.00 for each additional month of storage.” The court also quotes from the contract between the parties, as follows: “ Should I/we by our neglect or refusal to pay and/or settle as agreed above, thereby wrongfully refuse to perform the condition upon which time is granted, it is agreed that [if] the consideration for the grant of time' fails, that the full amount of the purchase-price shall at once be due and payable, and that, in addition to any other remedies you may have at law, you may store and retain the property for me/us, at my/our risk, retaking possession, if already delivered, and proceed, at your option, to recover the entire price, any law, usage, or custom to the contrary notwithstanding.” The opinion further states: “Under these allegations [paragraphs 4 and 5] which are denied by the plea, it is a condition precedent to any recovery that the proof show that the goods were stored for the vendee.” The final sentence in the opinion, as will be seen, is as follows: “The agreed statement of facts not showing that title to the property had passed to the purchaser, or that the goods had been stored for his use, the sellers could not recover the full purchase-price, and, there being no evidence as to the amount of freight, storage, and drayage paid, the plaintiffs failed to prove their case as laid, the court erred in directing a verdict, and the judgment must be reversed.” It clearly appears, therefore, that the Court of Appeals did not expressly or impliedly hold that the plaintiffs could not recover the price of the goods if it had been shown that the sellers, after the purchaser had declined to accept them, had stored or retained the possession of the goods for the use of the purchaser. On the contrary, the strong intimation is, that, had the proof shown that the possession of the goods had been so stored or retained, the sellers co.uld then have recovered the purchase-price. The foregoing statement shows that on the second trial of the case in the superior court the evidence was substantially the same, except that proof was made that the property was stored, as set forth in the statement, in the name of the attorneys for the sellers. A receipt therefor was issued to such attorneys, and notice of the facts given to the purchaser as set out in the letter quoted. The warehouseman testified that he would not have delivered the goods to the purchaser without the direction of the attorneys for the sellers. The record pertaining to the second trial does not disclose any tender of the goods by the sellers to the purchaser, except the original one made on terms of the buyer’s compliance with the contract. The opinion states that “the sellers brought suit under section 4131 of the Civil Code (1910) for the entire purchase-price thereof.” The petition, however, shows that the plaintiffs sued for the purchase-price under the terms of the contract. But even if the sellers were not entitled to recover if the suit were founded upon the section of the Code, 4131, providing that if a purchaser refuse to take and pay for goods bought the seller “may store or retain the property for the vendee and sue him for the entire price,” there can be no doubt that the sellers could recover the purchase-price under the terms of the contract to the effect, that, if the purchaser should neglect or refuse to accept and pay for the goods, the full amount of the purchase-price should at once be due and payable, and in 'addition to any other legal remedies the sellers might have they might -store and retain the goods for the purchaser at his risk, and recover the entire purchase-price, any law or custom to the contrary notwithstanding.

The evidence on the last trial in the superior court showed that the sellers had stored or retained the possession of the property, not for themselves, but for the purchaser, and they therefore had the right, under the contract, to recover for the full purchase-price. The fact that a receipt was issued by the warehouseman with whom the goods were stored to the attorneys for the sellers, and that the goods would not be delivered to the purchaser without an order from such attorneys — the purchaser having been notified of the fact of such storage, — ‘was a full compliance with the contract with reference to the storage or retention of the property by the sellers for use of the purchaser. Otherwise, that is, if the purchaser should have the right to receive the goods from the warehouseman without the payment of the purchase-price, or without the order or consent of the sellers or their attorneys, the provision of the contract as to the retention of the possession of the goods and the storage thereof would deprive the sellers of any control over them, and would enable the purchaser to obtain them without complying' with his contract or making any payment.

It follows that the first certified question is answered in the negative, and that the second question does not call for a categorical answer. The answer to the third question is in the affirmative. The answer to the first part of the fourth question is that the storage of the goods in the manner set forth, and notice thereof as started, was sufficient to authorize the suit for the entire purchase-price; and as to the latter part of the fourth question, we answer that the sending of the telegram as quoted had the legal effect of limiting the refusal of the purchaser to sign the note, as tendered under terms of the written order, to the one specified ground stated in the telegram, so as to waive and exclude all other grounds of objection of which the pur chaser then knew or an examination of the order, and the notes as tendered, might have disclosed. Cowdery v. Greenlee, 126 Ga. 789 (55 S. E. 918, 8 L. R. A. (N. S.) 137), and authorities cited.

All the Justices concur.