Poland Paper Co. v. Foote & Davies Co.

Lamar, J. Whether acceptance of goods is a waiver of damages for delay in delivery is a matter about which the authorities are in great conflict. See 54 L. R. A. 718, note. Some hold that, unless there is a reservation of the right to sue, the acceptance after the time fixed for delivery may be considered as evidence that the damages have been waived. Other courts, with this, rule that mere acceptance does not work such a result. Van Winkle v. Wilkins, 81 Ga. 104. But if the parties so intend, a new agreement may operate as a discharge of the old contract, and such discharge will be effected, even if nothing is said as to such being the intention, where the new agreement is founded on a new consideration. Civil Code, § 3732. Here the buyer got the same paper at a different date, and the seller a slightly reduced rate from that fixed by the contract, although the paper at the time was worth nearly fifty per cent, more than the contract price. There being no reservation of 461 the right to sue for damages for the delay in delivery, the full performance of the new agreement by the seller, and the acceptance by the buyer operated as a discharge of the prior undertaking. Jones v. Grantham, 80 Ga. 472 (4). Where a seller ref uses to deliver goods ordered, or to perform the contract, unless the buyer will pay a higher price than that originally named; and the buyer consents to pay and actually does pay the advanced price on delivery of the goods, he can not maintain an action against the seller for breach of the original contract. The new agreement is a. substitute for the old, and operates as a rescission or discharge, and takes the place of the original agreement as to everthing thereunder remaining unperformed. See Rogers v. Rogers, 139 Mass. 444 (where there were to be successive deliveries, and breach during the contract period); Cornish v. Suidam (Ala), 13 So. 118 (where the new contract was made after a complete breach, and damages therefor were not allowed). In Erwin, v. Harris, 87 Ga. 333, only part of the goods were received by the buyer, and the brokeq not the seller, made a new disposition of a pqrtion of them. The exact market price on January 17, 1900, when the goods reached Atlanta, does not appear, though it is fairly inferable from the record that it was considerably more than the contract price of four and a half cents per pound. Damages are not awarded as a punishment to the defendant, but to compensate the plaintiff, to save him harmless, and to enable the buyer, with the damages awarded, to go into the market and purchase at the higher price the same goods which the seller had agreed to deliver at a lower sum. Civil Code, §3794. When, therefore, the purchaser got paper worth six cents by the payment of four and a half cents per pouud, less a discount at á rate greater than lawful interest, it not only received all that it was entitled to under the original agreement, but also that which compensated it for damages in the delay. To make the seller deliver six-cents paper at a four and a half cents rate, and then to require it to pay damages in addition, nearly doubles its liability and loss. If Foote & Davies Company had a perfect claim for damages, and in order to secure the paper had agreed to pay more than the contract price of $1,987.02, and had thereafter been sued on such promise, they might have defended on the ground that the new promise was without consideration -r that they had received only what had been bargained to them at 462 a lower price; and that the increased amount was a pure gratuity. Civil Code, § 3641; Davis v. Morgan, 117 Ga. 505. But that case distinctly recognizes that there may be a rescission of the old contract by mutual consent, and that a new contract with new terms may be made, Judgment reversed. By five Justices.