78 S.E.2d 561
34858.Court of Appeals of Georgia.
DECIDED OCTOBER 24, 1953.
A petition to recover damages for the breach of an entire contract which shows that there was no performance or tender of performance of the entire contract was subject to general demurrer.
DECIDED OCTOBER 24, 1953.
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Action on contract. Before Judge Mundy. Haralson Superior Court. July 18, 1953.
Dixson Company sued George T. Hagood, doing business as The Rivercrest Dairy, alleging: That the defendant “is indebted to it in the sum of $720.85 arising on the following state of facts: . . . 2. The petitioner shows that on or about May 12, 1952, defendant ordered 10,000 quart paper milk bottles, and 10,000 quart paper buttermilk bottles, both orders to be printed with defendant’s business name thereon. Plaintiff attaches a copy of the specifications for said printed bottles, with defendant’s initialed approval thereon, hereto and marks it Exhibit `A’. The original order for said bottles was not signed by defendant. 3. Petitioner shows that it had these bottles printed to defendant’s specifications, and shipment was duly made to defendant of 9,840 quart paper bottles, and 7,948 quart paper buttermilk bottles at a charge to defendant of $467.82 plus plate charges of $170.00, plus $83.03 freight charges, making a total of $720.85, shipment made C.O.D. to defendant. The said shipment was made on October 27, 1952. Plaintiff attaches a copy of the bill of lading of said shipment hereto and marks it Exhibit `B’. 4. Petitioner shows that defendant refused to accept shipment of the items listed in paragraph 3 above, and in spite of petitioner’s demands, refuses to make payment therefor.” To this amended petition the defendant renewed his demurrers. The court overruled the renewed demurrers, and the defendant excepts.
D. B. Howe, Harold L. Murphy, for plaintiff in error.
Robert A. Edwards, contra.
FELTON, J.
Assuming for the sake of argument that, as contended by the defendant in error, the original petition and the petition as amended are founded on the theory of breach of contract, the petition as amended did not allege a good cause of action for breach of contract. The contract relied on by the plaintiff was for 10,000 milk bottles and 10,000 buttermilk bottles. This was an entire and not a divisible or severable contract. Grantville Oil Mills v. Hogansville Oil Mill Co., 19 Ga. App. 411 (1) (91 S.E. 572); Smith v. Harrison, 26 Ga. App. 325 (1) (106 S.E. 191); Henderson Elevator Co. v North Ga. Milling Co., 126 Ga. 279 (2) (55 S.E. 50); Robson Evans
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v. Hale Sons, 139 Ga. 753 (1) (78 S.E. 177); Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559 (1) (89 S.E. 486). The amended petition alleged that the plaintiff shipped only 9,840 milk bottles and 7,948 buttermilk bottles. The contract for 20,000 bottles sued on was not complied with by the plaintiff by tendering only 17,788 bottles. Brunswig v. East Point Milling Co., 11 Ga. App. 9 (1) (74 S.E. 448). A material deficiency in the quantity of goods tendered and delivered under an entire contract will defeat a recovery by the seller. Frank Meyer Neckwear Co. v. White, 29 Ga. App. 694
(3) (116 S.E. 855); Singer v. Santa Paula Commercial Co., 140 Ga. 411 (78 S.E. 1094); Maner v. Clark-Stewart Co., 33 Ga. App. 424, 425 (2) (126 S.E. 871).
The court erred in overruling the renewed general demurrer to the amended petition.
Judgment reversed. Sutton, C. J., and Quillian, J., concur.