61 S.E.2d 842
33174.Court of Appeals of Georgia.
DECIDED NOVEMBER 2, 1950.
1. Under none of the possible theories of the nature of the action did the evidence demand a finding for the plaintiff; and the plaintiff having failed to carry the burden of proof under any of the theories of the case, the verdict for the defendant was authorized.
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2. In view of the court’s instructions to the jury to disregard the alleged improper remarks made by counsel for the defendant in his argument to the jury, this ground of the motion for a new trial is without merit.
DECIDED NOVEMBER 2, 1950.
Complaint; from Hancock Superior Court — Judge George S. Carpenter. April 29, 1950.
Local Trademarks Incorporated, brought an action against Mrs. E. W. Chupp, trading as Hotel LaFayette Coffee Shop, in which it alleged that the “defendant is indebted to plaintiff in principal sum of $78 and interest at 7% per annum, from April 14, 1947, as will fully appear by reference to bill of particulars hereunto annexed, identified, as exhibits `A’, `B’, and `C’, and made part hereof. Defendant refuses to pay plaintiff said indebtedness, which is long past due. Domicile of defendant is Hancock County, Georgia.” Exhibit A is as follows:
Ship by express F. O. B. New York, as soon as possible fifty-two (52) mats size one col. and reading matter, both as you think best, from the copyrighted Where’s Elmer Series, and I hereby agree to pay you at New York, at the rate of one and 50/100 dollars per mat, total seventy-eight 00/100 dollars (78 00/100) for my right to use the above mats and reading matter for one year only from the first of the month following date of shipment in advertising the restaurant business in newspapers of and other media of Sparta, State of Georgia only. Terms of payment nineteen 50/100 dollars ($19, 50/100) ten days after shipment five 85/100 dollars ($5, 85/100) on the first of each month beginning July 1, 1947, until the whole amount has been paid. Fifteen days after failure to meet any of the payments due, the whole amount remaining unpaid becomes forthwith due and payable. It is agreed that, providing there shall be no default by me you will not hereafter give any one else any right to use the above mats and reading matter
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in newspapers of or other media of said place, during said period, nor thereafter until you have offered by mail to sell me at the same rate and terms stated above, the right to use additional mats and reading matter of this copyrighted series for the ensuing year. I understand that I shall arrange for publication in newspapers and other media and pay the cost of same, and that Local Trademarks Inc., assumes no responsibility for cost or rate of publication. Neither party will be held responsible for any provisions or representations not embodied in writing herein, and this contract is not subject to cancellation. This agreement is subject to your acceptance at New York. Dated 4-14, 1947. Name: LaFayette Coffee Shop, By Mrs. E. W. Chupp, Official Title
Exhibit “C” consisted of the following affidavit: “State of New York, County of New York () ss. Robert F. Stott, Manager of Local Trademarks Inc., a corporation duly organized, existing and doing business under and by virtue of the laws of the State of New York, being duly sworn, deposes and says that he has knowledge of the facts hereinafter set forth; that he makes this affidavit for and in behalf of Local Trademarks Inc., that Hotel LaFayette Coffee Shop is justly indebted to said Local Trademarks Inc. in the sum of seventy-eight 00/100 dollars, over and above and after allowing just credits, deductions and legal set-offs; that said amount is due and wholly unpaid, that the consideration therefor was the reservation of territory and the right to use copyrighted advertising material known as Where’s Elmer Series in territory provided in contract, copy of
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which is hereto annexed marked Exhibit “A”; that Exhibit “B” also hereunto annexed is a true and correct account taken from the books of original entry of said claimant, and that no part of said debt is for usurious interest. Robert F. Stott.” The affidavit was sworn to and subscribed on March 7, 1949, before a notary public of the State of New York. The defendant filed her answer in general denial. No demurrers were filed or passed upon. On the trial of the case the defendant admitted operating the Hotel LaFayette Coffee Shop on April 14, 1947 and admitted that the signature on the “contract” was hers. The plaintiff thereupon introduced the paper in evidence together with the following letter from Local Trademarks Inc., to the Hotel LaFayette Coffee Shop: “Dear Client: We are pleased to advise you that we have today accepted your contract. We are enclosing for your file an exact copy, on which you will note our formal acceptance is indicated. The execution of this contract will receive our closest attention. We have spent a good deal of time and thought on this series of advertising. We hope you will avail yourself to the fullest extent of your right to use the service, and use it regularly. If you do so, we feel sure the results will be very gratifying. We thank you for the courtesy extended our solicitor, and trust that this is but the first step in the establishment of friendly relations for years to come. Very truly yours, Local Trademarks Inc., Wm. P. Schweickert.” The following statement signed by Mrs. E. W. Chupp, Sparta Hotel, Sparta, Georgia, appears at the bottom of the foregoing letter from Local Trademarks Inc., to Hotel LaFayette Coffee Shop: “This contract is not the understanding that the representative portrayed to me. I understood that this amt. Was to pay the expenses of the printing in the local paper, but Mr. Moore says not. So please take your contract back and cancel my obligation. Thanks.” The plaintiff thereupon rested its case and the defendant testified: “As a matter of fact this advertising matter which is the subject-matter of this contract was never shipped to me at all. You ask me if I have ever seen the printed matter — the only thing I had, when the salesman was here he sold me on the idea of a slogan that was new and catchy, on the pretense that Moore would print it without charge to me. He would pay the printing charges. That
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was a mistaken idea, but I didn’t have a copy of the contract. He didn’t even leave me a copy of the contract. I signed a paper but I didn’t get a contract, but this letter. I had that paper over there from the company and when I read that `Elmer’ in it I told them on the bottom of the letter I didn’t want it and it was not any agreement with Mr. Moore and to forget it — yes this is what I wrote them — that is right, and I have witnesses. That is the letter I wrote. I signed this contract on April 14th. On April 16th., two days later, I had this from the company, it was not any `Kilroy’ in it. Yes I signed this on the 14th. That is right, on April 16th, I got a mimeographed letter from Local Trademarks Inc., saying that they were accepting my order — I immediately replied to that letter and told them I wanted to cancel it. In other words I signed the contract on April 14th. On [April] 16th they wrote me the letter to which I immediately replied telling them I did not want them to ship the stuff. That is right, so far as I know they have never shipped it — I have never gotten it — I have never seen it.” On cross-examination the defendant testified: “You ask me how I know what the advertising matter said if I didn’t get the stuff, well I know what is in that paper there. You ask me wanting to know positively whether or not this stuff was shipped to me and I refused it, well I never had it, I never saw it. You ask me if it ever was shipped here and I refused it, I am not sure if it came here and I refused it. I never had it at the hotel. After I told them I didn’t want it, if they shipped, it was on their and not my account. If they did ship it I certainly did refuse it. I don’t remember whether one time you showed me this card and I told you that I refused it.
You ask me if it is not true that I actually never saw it, because I didn’t take it out of the express office — what right did they have to ship it after I told them not to?” On redirect examination, the defendant testified: “This card here, it is postmarked New York. That is right, that is something they said. There is nothing on it that I said. That was sent from New York, it shows the stuff was in New York.” Counsel for the plaintiff took the stand and made the following statement: “I went to see Mrs. Chupp and carried her this letter and contract and requested payment and she told me the same thing she has testified to today, except she further said
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when they came to her about the express she would not take it out.” On cross-examination counsel for the plaintiff testified in part: “She also said when the stuff came here she would not take it out of the express office.” In rebuttal the defendant testified: “You ask me if I ever had a conversation with Mr. Thigpen [counsel for the plaintiff] in which I told him that the stuff had been shipped to Sparta and I countermanded it — I have no recollection of that, I don’t remember. I remember he tried to collect the bill and I told him if it came here I never got it. I don’t know whether it came here or not. I had a notice from the company that it was drawing storage in New York. I can remember that I never saw it and have no recollection that it ever came here at all.” The jury returned a verdict for the defendant. The plaintiff moved for a new trial on the usual general grounds and one special ground based on the refusal of the trial court to declare a mistrial for allegedly improper argument of counsel for the defendant. The trial court overruled the motion in the following language: “It is ordered that the motion for new trial in the above stated case, as amended, be, and the same is, hereby overruled, and the new trial prayed is denied. As to the general grounds, it will be observed that the evidence is insufficient to show that the plaintiff fulfilled its part of the contract by delivering to the carrier the goods described in the contract, or in the statement of the account. As to special ground, compare:Smith v. State, 204 Ga. 184(2) 188 [48 S.E.2d 860].” The plaintiff assigns error here on this judgment.
J. D. Godfrey, Casey Thigpen, for plaintiff.
Lewis Rozier, for defendant.
MAcINTYRE, P. J.
1. It appears from the undisputed evidence that the defendant on April 14, 1947, using a form provided by the plaintiff which contained all the terms of the agreement, signed an order for certain advertising material for use in advertising her restaurant business. The price of the materials was $78, payable as follows: $19.50 ten days after shipment of the materials, and $5.85 per month for ten months, beginning on July 1, 1947. One of the terms of the order, which the defendant signed, was that the defendant was to arrange for and pay the costs of publishing the materials. The order was accepted by the plaintiff in writing and, on April 16, 1947, the defendant
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received written notice of such acceptance. The same day, April 16, 1947, the defendant wrote the plaintiff to take back the contract and cancel it as it was not in accord with her understanding that the plaintiff would bear the costs of publishing the advertising materials. It is clear, therefore, that at the time the defendant sought to cancel the contract she had already entered into a binding written contract and “when two parties have entered into a written contract for the purchase and sale of goods, neither a countermand of the order for the shipment of the goods, nor a notice by the purchaser to the seller that he will not accept and receive them, is effectual to cause a rescission of the contract. Such a result can not be accomplished without the assent of the seller. The notice indicated above, under the common law, operates as a breach of the contract by the vendee, and in such a case the remedy of the vendor is an action to recover damages for such breach.”Oklahoma Vinegar Co. v. Carter Ford, 116 Ga. 140
(42 S.E. 378, 59 L.R.A. 122, 94 Am. St. R. 112). Under the provisions of Code § 96-113, “If a purchaser refuses to take and pay for goods bought, the seller may [1.] retain them and recover the difference between the contract price and the market price at the time and place of delivery; or, [2] he may sell the property, acting for this purpose as agent of the vendee, and recover the difference between the contract price and the price on resale; or, [3] he may store or retain the property for the vendee and sue him for the entire price.” The contract contained no provision as to the time the materials were to be shipped. It was merely agreed that they should be shipped by express. If prior to the receipt of the defendant’s notice to cancel the contract the materials had already been delivered to the express company, the plaintiff could maintain an action for the purchase-price of the goods sold and delivered on open account. If, however, the notice to cancel reached the plaintiff prior to the time he delivered the materials to the carrier, the plaintiff could not maintain an action on open account. Maddox v. Wagner, 111 Ga. 146
(36 S.E. 609); Bridges v. McFarland, 143 Ga. 581, 583
(85 S.E. 856); Dilman v. Patterson Produce Co., 2 Ga. App. 213
(58 S.E. 365); Dunaway v. Colt Co., 26 Ga. App. 554, 556
(106 S.E. 599). In such latter case the plaintiff could treat the notice to cancel as an anticipatory
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breach of the contract and immediately sue for the damage sustained; or, he could refuse to treat the contract as rescinded, treat it as continuing until the time arrived for performance and if at that time the purchaser still refused to take and pay for the goods, after they are tendered to him in accordance with the terms of the contract, he could pursue one of the three remedies provided by Code § 96-113. Southern Flour Grain Co. v. St. Louis Grain Co., 11 Ga. App. 401
(75 S.E. 439); Edison v. Plant Bros. Co., 35 Ga. App. 683
(134 S.E. 627). There is no direct evidence of the time the materials were delivered to the express company nor is there any evidence from which the jury could have drawn an inference that the materials were delivered to the express company prior to receipt of the notice to cancel the contract; and, therefore, the burden of proving a completed sale in such an action being upon the plaintiff, it could not have recovered in this case if construed as an action upon an open account. There were, however, no demurrers filed in this case and the petition will be given that construction most favorable to the assertion of a cause of action in the plaintiff as it is not manifest upon what theory the plaintiff is proceeding. Toney v. Everett, 68 Ga. App. 703
(23 S.E.2d 500); Payton v. Gulf Line Railway Co., 4 Ga. App. 762
(62 S.E. 469); Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (3-a) (118 S.E. 694). Unquestionably the plaintiff could recover for the defendant’s admitted breach of the contract upon proof of the correct measure of damages. It is obvious, however, that the plaintiff did not choose to treat the contract as rescinded and to sue for the damage sustained at the time of the rescission as the plaintiff contends that the materials were delivered to the express company. It is also obvious that the plaintiff does not seek to pursue either the first or second remedy afforded by Code § 96-113, as indicated above, as there is no evidence that the plaintiff retained the goods and sought to recover the difference between the contract price and the market price at the time and place of delivery; nor, that the plaintiff, after notice to the defendant, sold the materials, acting for that purpose as agent for the defendant, seeking thereby to recover the difference between the contract price and the price on resale. Under the third remedy afforded by Code § 96-113, the plaintiff could have stored or retained the property for the
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vendee and sued her for the entire purchase-price. However, “it is a condition precedent to any recovery [of the entire price] that the proof show that the goods were stored for the vendee.” Tuggle v. Green Sons, 21 Ga. App. 723 (94 S.E. 908). It is also necessary that the proof show that the materials stored for the benefit of the vendee were the identical goods
contracted for by the vendee (Newman v. Colt Co., 28 Ga. App. 58, 110 S.E. 321); and the proof should show, of course, that the vendee was notified that the materials contracted for had been stored or retained for her benefit. Georgia Agricultural Works v. Price, 11 Ga. App. 80 (74 S.E. 718). The only evidence tending to support this latter theory of the case is that of the defendant when she stated: “I had a notice from the company that it was drawing storage in New York.” While this evidence, together with the inferences to be drawn therefrom, might have authorized the jury to find that some
materials were stored in New York which were drawing storage and that the defendant had been so notified, it did not demand the finding that the materials contracted for were the materials stored, or that the materials stored were stored for the benefit of the defendant. Under this state of the evidence the plaintiff, upon whom the burden of proof rested, failed to prove its case under any of the various or possible theories of recovery discussed above, and the jury was authorized to find in favor of the defendant. The court did not, therefore, err in overruling the motion for a new trial for any reason assigned in the general grounds.
2. In special ground 2 it is contended that the “court erred in failing to grant a mistrial on motion of movant on account of certain improper remarks made by . . counsel for defendant before the jury and in the presence of the court and jury. Motion for mistrial . . [was] made after court had completed charge to jury and while jury was on way to jury room to commence their deliberations.” In discussing such motion made by counsel for the plaintiff, the plaintiff’s counsel and the defendant’s counsel did not agree as to what those alleged improper remarks were and, at the close of such argument, the court stated: “Gentlemen, if any remark was made that this plaintiff in this case was a scheming corporation by counsel that would not have been a proper argument and I withdraw that
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from your consideration. You will not give it any consideration whatever in reaching your verdict in this case. I might say that this motion was not made at the time that Mr. Lewis made the argument, but anyway, the remark to which I called your attention, you will not consider that in reaching your verdict. You may retire and consider your verdict. With that statement, I overrule the motion.” It seems to us that the court was in effect saying that the remarks in question were that the defendant’s counsel referred to the plaintiff as being a scheming corporation, and the corrective measure taken by the court, which is quoted above, was taken with reference to such improper argument, but in view of this corrective measure adopted by the court, we do not think that a new trial should be given for the reasons urged in this ground of the motion for a new trial.
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Gardner and Townsend, JJ., concur.