Paxson Bros. v. Butterick Publishing Co.

Fish, C. J. (After stating the foregoing facts.) The trial judge properly decided that the defendants were not entitled to credit for the goods which they sought to return. The contract expressly stated that it was to continue in force for the term of three years from date, and from year to year thereafter until it should be terminated by either party giving to the other the written notice therein prescribed. Moreover the contract, considered as a whole, clearly indicated that it was not the intention of the parties that it should be speedily or abruptly terminated. It was agreed that “all patterns on hand at the expiration of the term of this order will be returnable for repurchase at three fourths of cost in cash, if delivered at your [the plaintiff’s] New York office in good condition, payable within one month from date of delivery.” Another term of the agreement was: “Failure or neglect by either party to perform any provision of this order will, at the option of the other, release the other party from all obligations hereunder.” This last stipulation, however, was but the statement of a well-recognized legal principle which would have been operative had it not been expressed in the contract. See Savannah Ice Co. v. American Transit Co., 110 Ga. 142 (35 S. E. 280), where it was held that failure to make payments for articles delivered under a contract during a series of years, to be delivered in instalments and paid for monthly, entitles the vendor to rescind the contract. See also Paxson v. Butterick Publishing Co., 136 Ga. 774-775 (71 S. E. 1105). Clearly it was the intention of the parties to the contract that the defendants should have the privilege of returning to the plaintiff, at a stated price, such patterns as the defendants might have on hand at the expiration of the term of the contract, which was fixed as three years, and longer if not terminated by three-months written notice by either party. Surely it was never intended by the parties that the defendants had the right, under the contract, to capriciously refuse to comply with their agreement to make payments as'specified for goods bought — thus committing a breach themselves — and thereby cause the plaintiff to refuse to furnish more goods until those already supplied had been paid for, and in this way enable the defendants to reap a benefit from their [110] own default and wrong, by terminating the contract and giving the defendants the right to return the goods they then had on hand and for which they had not paid, and to get credit therefor. Judgment affirmed. All the Justices concur.