Wholesale Mercantile Co. v. Jackson

59 S.E. 106, 2 Ga. App. 776, 1907 Ga. App. LEXIS 523

• Court: Court of Appeals of Georgia
• Decided: November 11, 1907
• Docket: 485
• Status: Published

Opinion

Russell, J.

(After stating the foregoing facts.) Summarizing the contentions of both parties, the evidence for the plaintiff tended to show that the -manager of the defendant company bargained for all of the canned peaches and tomatoes he had for sale. He testified th$t he expressly informed the manager, Mr. McCormick, that he accepted his bid in preference to that of Mr. Strickland, another buyer of' fruit, upon the ground that Mr. Strickland had only offered to take a portion of his canned goods. He further testified that he delivered the goods according to his contract, at the warehouse of the defendant, and to one of its employees, who received them and stored them in the warehouse. The defendant’s manager, Mr. McCormick, testified, that he only contracted for a fixed quantity of each of the three kinds- of fruit offered for sale by the plaintiff; that this was one of the express terms of the contract, and that under no consideration would he have bargained for as large a quantity as the plaintiff claimed to have sold him. He contended, that there had been no delivery of the goods to the defendant; that the clerk who received the goods at the warehouse was not authorized to effect an acceptance, and that as soon as he knew that the fruit was being delivered he refused to accept or pay for it. There was'no conflict as to the price at which the fruit was to -be delivered, nor any evidence tending to show that it was not the quality contemplated by the parties. 'Upon a complete review of the evidence, we find no error in the judgment refusing a new trial. We base our decision upon the following reasons:

1. • The evidence upon the only material points in the case was conflicting, and we have more, than once held that in such a case this court can not interfere with the finding of the jury upon the facts.

2. There was no such error in the instruction of the court with reference to the application of the statute of frauds to the evidence submitted as will authorize a reversal of the judgment. Considered in dismembered fragments, the instructions of -the court might appear subject to the objections urged by counsel for the plaintiff in error, but when the charge upon this subject is considered as a whole and in the light of the evidence, there was no error in the court’s giving in charge to the jury, in connection with paragraph 7 of §2G93 of the Civil Code, the three exceptions provided by §2694. It is now strenuously insisted by the learned counsel for plaintiff in error that the court erred in presenting the second exception to the jury. It is apparent to any one that the evidence in behalf of the plaintiff required that the jury be instructed that although the value of the goods might amount to more than fifty dollars, the contract of sale would not have to be in writing, where there had been performance on the part of .the plaintiff and acceptance, as the plaintiff testified, on the part of the defendant. And we think, moreover, there was no error in further charging the jury that the contract of sale need not be in writing if the jury believed the contract had been fully executed. This was.held by the Supreme Court in Johnson v. Watson, 1 Ga. 348, before the passage of the act now embodied in §2694; and it was further held, in the same case, that the question of delivery by the vendor and acceptance by the vendee is one of fact for the jury. As stated by Chancellor Kent (2 Kent’s Com. 491), “when the terms of sale are agreed on and the bargain is struck, and everything which the seller has to do with the goods is completed, the contract of sale becomes absolute, and the property and risk of accident to the goods rests in the buyer.” See also Woodward v. Solomon, 7 Ga. 246. If the jury believed the testimony in behalf of the plaintiff, the contract was executed; and the jury were properly instructed to apply the first exception mentioned in §2694. It may be that the court might have more fully instructed the jury, as insisted by counsel for plaintiff in error, as to the applicability of the third exception, but in view of .the evidence of the plaintiff and the fact, as demonstrated by the' verdict, that the jury rested their verdict upon his testimony, the omission of the court in this regard would not be error of which defendant could complain; for the reason that the exception is provided for the benefit of plaintiffs, to be used in resistance of a plea that the contract is not binding because not in writing.

3. Conflict in the evidence arose upon the subject of the quantity of the goods sold, and whether the goods were delivered and accepted. Plaintiff in error insists, that it was indisputably established that the goods were never accepted, but were rejected the moment its authorized agent was informed of the quantity tendered and insisted on by Mr. Jackson, the plaintiff; that the clerk, Hawkins, had no authority to accept the goods for defendant, but merely the duty of reporting the same to the general manager, McCormick; and that upon his reporting in this instance, McCormick rejected the goods and refused to accept the' same. It is of course well settled that mere receipt of goods without acceptance will not meet the requirements of the statute of frauds Loyd v. Wight, 20 Ga. 578; s. c. 25 Ga. 215; Tiedeman on Sales, §66. Nor is an agent who is merely authorized to receive and count goods, or weigh them as delivered, the agent of the buyer to so accept the goods as to bind his principal. It is also true that acceptance can not be inferred from mere receipt of goods into the possession of the buyer, provided he does not retain them longér than may be reasonably necessary to enable him to examine their quality and quantity. 20 Cyc. 249. Upon these well set-tied principlés the learned counsel for the plaintiff in error based most of the contentions urged in his brief. We must not, however, lose sight of the fact that these contentions are not based upon the evidence for the plaintiff, and that the jury had the right to give the preference to his testimony. According to this testimony, he delivered to the defendant at its place of business exactly what he had contracted to sell, both as to quantity and quality; and quantity and quality both being complete, and the goods delivered at the stipulated time and for the stipulated price, the defendant had no right to reject, nor any reason for inspection. If goods of exactly the quantity and quality bargained for were delivered according to the terms of the contract, it became absolutely immaterial whether the agent who received them had or ■did not have the right to accept them. Acceptance followed necessarily on the impossibility of rejecting the goods contracted for, ■and to decline to take them would have been a fraud.

4. Several exceptions are taken to certain portions of 'the charge, in which it is assimied that the contentions of the defendant were not sufficiently presented to the jury; and it is also alleged that certain excerpts from the charge either contain intimations of opinion by the court, or assume facts to be in evidence which were not supported by the testimony. We have referred to several of these in the statement of facts preceding this case, but .any further discussion than is contained in the headnotes is unnecessary. Viewing them in the light of the charge as a whole, ■these exceptions are without merit. Such are the assignments of ■error contained in the 1st, 2d, 5th, 7th, 8th, and 9th grounds of the motion for new trial.

5. Much stress is laid on the 4th ground of the motion for new trial. The excerpt from the charge complained of (which is quoted in the statement of the case) immediately follows the instruction to the jury that the company would be liable only provided it appeared that the goods were actually accepted by the •company, and precedes the instruction complained of in the 10th ground of the motion for new trial. Judged in this connection, the jury could not have been misled or confused into believing ■ otherwise than that it was absolutely essential for the plaintiff to •demonstrate by the evidence that the defendant accepted the goods tendered by him, nor led to suppose that mere knowledge on the part of the defendant that the fruit mentioned was being put into its warehouse proved that the defendant accepted it and expected to pay for it; the court having more than once instructed the jury that the plaintiff’s right was dependent upon compliance with his contract and acceptance by the buyer.

What we have just said in reference to the 4th ground of the motion is clearly applicable to the 6th. The charge complained of in the 6th, however, relieves the ambiguity, if any existed, in the instruction complained of in the 4th ground; for the court expressly charged the jury that they could consider whether the defendant knew that the goods were being placed in its warehouse, and if the jury should find that it did know it, and that it was being done in pursuance of their contract, the company would be bound, otherwise it would not be bound. What could be plainer? 'If the delivery was being made in compliance with the contract, as testified to by the plaintiff, the company would necessarily be bound. The defendant could not ask to be relieved except upon the testimony of its manager that no such contract was made and that the contract that was made was'not complied with.

6. There is no merit in the .7th ground of the motion. The excerpt complained of was addressed to the jury in response to an oral request made by the defendant’s counsel, who asked the court to charge the jury that if the company did know that the goods were being placed in its warehouse by Mr. Jackson for the purpose of delivery, it would not bind the company, if it understood that it still had the right to reject them. The court assented to this proposition (stated in the presence of the jury), by using the word “yes,” thus giving it his sanction, but very properly qualified the instruction by adding that “that would depend upon the additional fact whether or not the company had the right, after the goods were actually placed in its warehouse, to examine the goods and accept or reject them.” The word “that,” in the charge quoted, refers to the proposition stated by counsel, and sanctioned by the court by the use of the word “yes” The word “yes” relates back so as to mean that the company would not be bound, if it understood that it had the right to reject the goods; and the qualification of the court simply meant that while, as before stated, the acceptance depended upon the defendant’s understanding of its right to reject (which was not a correct statement of law applicable to the evidence), the evidence must show a real right to reject. The court, therefore, while sanctioning and indorsing to the jury the proposition stated by the defendánt’s counsel, very properly qualified this statement (adopted pro tanto as his own), by further instructing the jury, in effect, that the understanding of the defendant was, after all, dependent upon and subordinate to its actual rights to accept or reject the goods, as fixed by the contract, whatever the jury might find, from the evidence, that contract to be. As there was no contention on the part of either party that he misunderstood the contract, nor any evidence showing that either party was known by the other to be acting under a misapprehension of the contract, the understanding of either party could not affect the contract, and could be of no use to the jury except in so far as it might aid in enabling them to find the true contract.

7. The complaints urged against- the excerpt from the charge, on which error is assigned in the 10th ground of the motion for new trial appear to us groundless, on consideration of the entire charge and the circumstances under which the instruction complained of was given. It appears in the record that the court had practically completed the charge to the jury, and that first the defendant’s counsel and then the plaintiff’s attorney had made oral requests for additional instructions. The only request refused was one preferred by the plaintiff’s counsel. Immediately following the charge which is assigned as error in the 9th ground of the motion (and which will be found in the statement of the case), defendant’s counsel suggested, “That leaves out altogether the question of quantity. They had the right to refuse them for not corresponding in quantity as well as quality.” Upon this suggestion of counsel on the subject of the quantity, the court replied to counsel, “I thought I had covered that;” and proceeded, in compliance with the suggestion, to relieve the objection of the defendant. It was addressed to only one point, but nothing more would have been required even if the request had been in writing; and the request might have been declined even if in writing, because the subject had already been fully covered in the charge to the jury. The assignments of error depend (a) partly upon the assumption that it is necessary for a trial judge to repeat, in treating of each and every phase of the case, and in every possible connection to reiterate, the law applicable to all of each .party’s contentions; (&) partly upon an alleged intimation on the part of the judge; and (c) partly upon verbal criticism of the language employed in the instruction to which exception is taken.

(a) The judge, having already fully explained the purpose and effect of the statute of frauds, was not required to repeat these instructions to the jury in connection with a charge invoked upon a different subject and one wholly disconnected with defendant’s defense under the statute of frauds. Especially is this true where the request was preferred by him who now complains, and where the request was directed expressly to only one point in the case, and was fully complied with by the court. The charge complained of in this ground of the motion did not ignore the effect of the statute of frauds, or withdraw from the jury the defendant’s defense based thereon, although the judge did not refer to the subject in connection with this instruction. The plaintiff’s case, according to his testimony, had but one foundation,, a contract of sale fully executed on his part; the defendant’s defense traveled on two legs, — the one, the plea that there was no completed contract of sale nor acceptance of the goods; the second leg, the plea in which the statute of frauds was invoked as a defense. In one view of the defendant’s case the effect of the statute of frauds was entirely immaterial. If the contract was for a limited quantity of the canned goods as a whole, and for a limited quantity relatively of each kind, and the plaintiff, in violation of the contract, attempted to deliver a larger quantity as a whole and different quantities relatively of each from those contracted to be delivered, and the defendant, as would have been its right, declined to accept them, no recovery could be had against the defendant. And this without regard to the defendant’s plea of the statute of frauds. The plaintiff’s failure to comply with the provision in reference to the quantity, and the defendant’s rightful refusal to accept the articles tendered, would defeat the sale. The statute of frauds was immaterial to either view of the plaintiff’s case as made by him in the record. If the goods were bought and delivered, as testified, according to contract, he would be entitled (regardless of the provisions of §2693 of the Civil Code) to recover the purchase-price. If the contract of sale was as testified to in behalf of the defendant, and there was no acceptance by the defendant of the goods tendered, then (regardless of the operation of the statute of frauds) the plaintiff could not recover. When we consider that the portion of the charge now under consideration was made supplementary to a presentation of one phase of the plaintiff’s contention as requested by plaintiff’s counsel, expressly to present defendant’s claim of the right to reject the goods on account of defect in quantity, and for the purpose of preventing any limitation or restriction of the defendant’s right to inspect the goods and ascertain whether they corresponded in quantity as well as quality with those purchased hy the defendant, and further discover from the record that the jury had been fully and, we think, 'correctly instructed as to the law applicable to the defendant’s plea of the statute of frauds, we think it is quite clear that the intelligence of 'the jury could safely be trusted to remember that the defendant-had two pleas, and to recall and apply the instructions already given hy the court, on the subject of the statute of frauds, to the evidence applicable to the defense based on §2693 of the Civil Code.

(b) The language of the instruction in question does not “make the legal right of the defendant to refuse acceptance of the goods dependent upon the terms of the oral contract as found by the jury,’’ as insisted by plaintiff in error; because, as stated above, the court is, at j:his point, onlj- presenting the law applicable to one issue in the case, to wit, whether there was or was not a sale of the goods as insisted by the plaintiff. But there is nowhere any intimation of opinion upon the facts by the court. This ground.of the exception is destroyed when the charge to which exception is taken is Tead.

(c) The instruction now under review may be subject to verbal criticism. The trial judge was perhaps too' complaisant in his language in referring to the sharp conflict between the parties. He was perhaps too much imbued with the spirit which it is the duty of the jury to exercise in case of conflict in the evidence,— that of harmonizing conflicting testimony so as to make all-the wetnesses speak the truth. No exception is taken to this. But if instead of saying, “if you find that the plaintiff is mistaken about his right to deliver,” etc., and that “the defendant is right in insisting that,” etc., the judge had substituted more vigorous and explicit language, so as to have charged the jury that if they found from the evidence that the plaintiff was not to deliver all the goods of this kind that he had, and if they believed that the defendant bought only 75 cans (or whatever they might find to be the number), then the defendant would have a right to object to the quantity as well as the quality, if it did so at the proper time, the only possible objection would have been removed. The jury might possibly have been led, by the language used, to suppose that they could settle the rights of the parties according to their opinion of right, instead of by the testimony as they found it to be true; but no exception is based upon that ground. The exception is taken to the words “this kind,” in the charge; it being insisted that the words “all the goods of this kind” furnish no indication as to whether the court meant' table peaches, pie peaches, or tomatoes. We can not approve of this exception; because it appears, in the evidence for the plaintiff, that he sold to the defendant company all the canned goods he had, and that he declined to sell part of them either to Strickland or to the defendant, and it further appears that these canned goods embraced only pie peaches, table peaches, and tomatoes, iso other goods are hinted at in the testimony, except canned goods; and if he sold all he had of “this kind,” it is undisputed that he must have sold, not only “table peaches” and “pie peaches,” but “tomatoes” as well; and the exception is without merit.

We are satisfied, at the end of a most thorough and painstaking investigation of the merits of every assignment of error, and of every argument in its support, that our respect for the profound legal ability of the learned counsel for plaintiff in error has caused us to search more diligently (if it be possible) than usual for every error pointed out in the record and brief, and to unduly lengthen our discussion of the points involved. After all, we find no error which requires the grant of a new trial. After all, in a fair trial (but with conflicts irreconcilable in the evidence), the jury preferred to base its verdict on the testimony for the plaintiff, instead of on that in behalf of the defendant.

Judgment affirmed.