Chickamauga Manufacturing Co. v. Augusta Grocery Co.

Wade, C. J. This suit was for damages on account of a breach of an alleged contract. The defendant signed an order, directed to - the plaintiff, for 350 gross of a certain commodity therein described, to be delivered by freight and “to be used as ordered within 13 mos. from date.” The petition alleges that tins commodity was to be manufactured by the plaintiff “and put up under their particular brand in a special package for the defendant, in accordance with defendant’s instructions,” and that the plaintiff “was at all times prepared to deliver said 350 gross of Honest John Bluing to defendant at Augusta, Georgia, under the terms of said contract, at any time during the 13 months between the 13th day of March, 1913 [the date of the order], and the 13th day of March, 1913.” It is not, however, expressly alleged that this order was accepted by the plaintiff, either orally or in writing, or that the goods were ever manufactured in accordance with the terms of the-order, or were ever tendered or delivered by the plaintiff; and it does not appear that the plaintiff ever expressly -bound itself to manufacture and deliver the total quantity of 350 gross of the commodity ordered, in exact conformity with all the terms of the 'order as to price, time of shipment, etc. The unaccepted order -did not itself constitute a valid contract, as it was wanting in mutuality until accepted, orally or in writing, or by the conduct of the parties, so as to bind both the prospective vendor and the vendee. It is alleged that the “defendant ordered out 45 gross of said 350 gross of bluing during the time specified in said order, but refused to accept the remainder 'of said contract of 305 gross,” and “notified your petitioner that it would not accept the 305 gross of Honest John Bluing.” The statute of frauds was not involved in this case, and shipment of some of the commodity specified in the order, before the defendant directed that no further shipments be made, would not amount to such an acceptance of the entire order as would legally bind the plaintiff to ship the remainder of the [167] quantity therein specified and at the price, etc., therein named, it not even being alleged that the plaintiff advised the defendant or indicated to it in any manner, at the time this particular shipment was made or before the order for the remainder of the commodity was revoked, that the shipment was so made under the terms of the order. The shipment of some of the commodity ordered, without reference to its terms, could not of itself convert the mere order into a valid and binding mutual agreement between the parties. See, in this connection, Morrow v. Southern Express Co., 101 Ga. 810 (28 S. E. 998); Waycross R. Co. v. Southern Pine Co., 115 Ga. 7 (41 S. E. 271); McCaw Mfg. Co. v. Felder, 115 Ga. 408, 411 (41 S. E. 664); Harrison v. Wilson Lumber Co., 119 Ga. 6 (45 S. E. 730); Sivell v. Hogan, 119 Ga. 167 (46 S. E. 67); Seaboard Air-Line Ry. v. Harris, 121 Ga. 707 (49 S. E. 703); Swindell v. First Nat. Bank, 121 Ga. 714 (49 S. E. 673); Simpson v. Sanders, 130 Ga. 265 (60 S. E. 541); Denton v. Butler, 7 Ga. App. 267 (66 S. E. 810); Trigg Candy Co. v. Emmett Shaw Co., 9 Ga. App. 358 (71 S. E. 679); Martin v. Cox, 13 Ga. App. 236 (79 S. E. 39); Haynes Auto Co. v. Turner, 18 Ga. App. 22 (88 S. E. 717). The court did not err in sustaining the demurrer to the plaintiff's petition. Judgment affirmed. Jenkins and Luke, JJ., concur.