Westmoreland v. Gainesville & Northwestern Railway Co.

107 S.E. 891, 27 Ga. App. 176, 1921 Ga. App. LEXIS 761

• Court: Court of Appeals of Georgia
• Decided: June 14, 1921
• Docket: 12355
• Status: Published

Opinion

Broyles, C. J.

1. Where A and B enter into a contract which contains no stipulation as to the time of its performance, and A (the party who agrees to perform) fails to perform within a reasonable time, performance within such time is waived by B if after such failure he urges A to perform and A thereupon does perform, and the performance is accepted as satisfactory by B. Jordan v. Rhodes, 24 Ga. 478; Moody v. Griffin, 60 Ga. 460; Greene County Oil Go. v. MeOaw Mfg. Go., 9 Ga. App. 39 (70 S. E. 201), and authorities cited; Hollister v. Bluthenlhal, 9 Ga. App. 176 (8) -(70 S. E. 970).

(a) This ruling is not in conflict with the decision in Bernhardt v. Federal Terra Gotta Go., 24 Ga. App. 635 (101 S. E. 588), for the facts of that ease were quite different from those in the instant one.

2. Under the above ruling and the facts of this ease, the court did not err in awarding a nonsuit.

Judgment affirmed.

Luke and Bloodworth, J.J., concur.

On the trial the plaintiff (the only witness) admitted that the stock-gaps were put in by the defendant in September, 1917, and 'that he was entirely satisfied with the gaps put in; that he never gave the defendant written notice as to where he wanted the stock-gaps put, but that from time to time be urged the agents of the defendant to put them in, and that the last time he so urged them was in the summer of 1917, when he threatened to bring suit unless the gaps were put in, and that shortly after that they were put in, and were entirely satisfactory.

B. P. Gaillard Jr., for plaintiff. Dean & Wright, for defendant.