Herzfeld v. Southern Saw Mill Co.

Jenkins, P. J. (After stating the foregoing facts.) It is-the contention of counsel for defendant in error that “there never was any refusal by the buyer to take and pay for the goods; that under the contract the buj^er had the right to request a cancellation, and this would not amount to a breach; that the seller distinctly avers that the goods were manufactured and ready for delivery under the contract before the buyer requested a cancellation, and at that time the seller had as a part of the contract its positive shipping instructions;” that “under these-circumstances he could not fail or refuse to carry out these shipping instructions and resell the goods, nor was he justified in retaining them in violation of his own contract and suing to recover the difference between the market price and the contract price at the time and place of delivery;” that “he should have delivered as he had contracted to do;” and that consequently the petition set forth no cause of action. In Phosphate Mining Co. v. Atlanta Oil Co., 20 Ga. App. 660, 662 (6) (93 S. E. 532), the rule is stated, that “an executory contract may be broken, but it cannot be rescinded, by the act of one of the parties. The consent of both parties is essential -to a rescission of the contract” (citing Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 42 S. E. 378, 50 L. R. A. 122, 94 Am. St. R. 112). The provision contained in plaintiff's letter of acceptance, that the purchase and sale was “subject to cancellation only when agreed to by both parties,” is but a statement of what'constituted the legal rule. If the contention of-defendant in error be correct,-that the petition shows that the defendant did hot by its words and conduct breach its obligation, that ther'e was-never any refusal on its part to take the goods, but that the-pleadings> properly construed.; show merely that the defendant requested a cancellation, this--would be an end to the matter, since the plaintiff vendor--in such a case would not have been' relieved of the duty of complying with its own obligation to ship the goods as provided for by -the contract, [326] There is nothing whatever contained in the record which in anyway indicates an agreed rescission. Therefore, the question is, did the defendant purchaser breach the contract, or merely propose a cancellation? If what he said may be taken and construed as an announcement that he would not accept the goods contracted for, it amounts to a breach. The telegram must be construed in connection with the letter to which it refers. If the telegram stood by itself, it might reasonably be taken as constituting a mere request for a rescission of the agreement. As here used, “the imperative, followed by the infinitive, generally without to, is used as a form of polite request or entreat^.” (Standard Dictionary.) But when the telegram is construed in connection with the letter, it seems clear to us that the purchaser in unmistakable terms puts the seller on notice that he will not take or accept the goods. The letter does not ask for, but announces, a cancellation. It expresses regret for “the necessity,” not of making a request, but of “cancelling these orders,” and states as a reason for its conduct in so doing that the railroad, to which they had been ordered shipped, had positively refused to accept them. This being the only shipping direction with which the plaintiff seller had been furnished, the letter amounted to an absolute refusal to take the goods; and we cannot agree with the contention of defendant in error that the seller, despite such notice, could or should have proceeded to make the shipment as previously indicated. The letter concluded by asking, not acquiescence, but mere acknowledgment of its notice of cancellation. Each count was good as against general demurrer. The court has ruled that the allegation as to notice, made in paragraph 10 of the first count, was not subject to special demurrer. No exception is taken to this ruling. “Whether a seller, who, upon the purchaser’s refusal to take and pay for goods bought, elected to resell and recover the difference between the contract price and that obtained on the resale, exercised reasonable diligence to sell within a reasonable time and at the best price he could obtain is a question for the jury.” Bennett v. Mann, 24 Ga. App. 581 (2) (101 S. E. 706). Judgment reversed. Stephens and Bell, JJ., concur.