Bridges & Murphy v. McFarland

Evans, P. J. (After stating the foregoing facts.) 1. The defendants demurred to the petition as not setting out a cause of action. This demurrer was overruled by the court. Although pendente-lite exceptions were taken to the ruling, and error assigned thereon in the bill of exceptions, counsel for the plaintiffs in error expressly abandon the point in this court. They are committed to the proposition, therefore, that a cause of action is set out. Where parties enter into a written contract for the purchase and sale of a chattel, before the seller can maintain an action for its agreed price there must be such deliver}7, actual or constructive, as will pass the title and vest the ownership of the property in the purchaser. Oklahoma Vinegar Co. v. Carter, 116 Ga. 140 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112). Where the contract is that the defendant is to make a partial cash payment and give notes for the balance, the seller retaining the title until the full purchase-money is paid, a tender on terms of the buyer’s compliance with the contract will not have the effect of transferring the title to the buyer. If the buyer refuses to make the'partial cash payment and give notes as called for by the terms of the sale, or to accept any possession or control of the property, no title passes to him, and the seller’s remedy is not for the purchase-price of the chattel, but for the breach of the contract. Dilman v. Patterson Produce &c. Co., 2 Ga. App. 213 (58 S. E. 365); Tufts v. Grewer, 83 Me. 407, 412 (22 Atl. 382). We therefore will consider the petition as alleging a case upon a breach of contract, this being in accord with the ruling of the court that the petition set out a [584] cause of action, and the acquiescence therein by the plaintiffs in error. 2. So construed, the plaintiff was not entitled to recover the attorney’s fees named in the contract. The contract did not stipulate to pay attorney’s fees, but to give notes providing for the payment of attorney’s fees, in addition to the principal and interest; and the special demurrer on this ground was meritorious and should have been sustained. 3. Certain correspondence between the plaintiff and the defendants was rejected on the ground of irrelevancy. Clearly most of it is irrelevant to the issue made by the pleadings. Where testimony is offered as a whole, if only a part of such testimony be admissible, the refusal to admit it as a whole is not error. Tillman v. Bomar, 134 Ga. 660 (68 S. E. 504). 4. The verdict was directed for the agreed purchase-price of the machine. In a suit for the breach of a contract, where the seller retains the goods, he can not recover the full purchase-price, because he would thus be allowed not only to retain the goods but to recover the full purchase-price thereof. The court erred in directing the verdict for the agreed purchase-price of the chattel. Judgment reversed. All the Justices concur.