Edison v. Plant Bros. & Co.

Jenkins, P. J. The defendant, trading as Black Shoe Store, on August 23, 1923, gave to the plaintiff’s salesman in Boston an order for certain shoes, to be specially manufactured, of which order the salesman made a duplicate memorandum, setting forth the shoes ordered, the price of each style, the terms of the sale, and the following notation of shipment, “Ship about October 10th, sure, complete.” This memorandum, a duplicate of which was furnished defendant, was not signed by him, and the order was taken subject to the acceptance of the plaintiff, who was a shoe manufacturer. The plaintiff wrote the defendant under date of August 27, 1923, that it could not supply certain of the shoes ordered, and requested permission to make certain substitutions, stating that if permission for such substitutions should be sent by return mail the plaintiff would be able to give the same delivery date on the substituted articles as outlined on the original order. The defendant wrote the plaintiff under date of August 27, 1923, requesting an acknowledgment of the order placed in the plaintiff’s Boston office on August 23, “delivery of which was to be complete by October 1st to 10th.” In reply to the defendant’s letter of [685] August 27, the plaintiff wrote the defendant on August 30, reciting its previous acknowledgment of the order, and stating that “this order will receive our careful attention and we will do our utmost to give you shipment by October 10th.” On September 1, 1923, the defendant wrote the plaintiff, declining to allow the substitution mentioned in the plaintiff’s letter of August 27, and stating that “we are going to ask that you kindly let the balance of order come out as originally given.” The plaintiff proceeded with the manufacture of the shoes, and on Octobef 10, 1923, had about two thirds of the order ready for shipment, and the remainder of the order practically complete. On October 12, 1923, the defendant wired the plaintiff to cancel the order of August 23, stating that shipments were promised October 1, to be complete by October 10, and “we can not use these shoes now.” Following this telegram, the defendant wrote the plaintiff on October 13, confirming the telegram, to which letter and telegram the plaintiff replied on October 16, declining to cancel the order. The defendant wrote the plaintiff under date of October 19, replying to its letter of the 16th, in part as follows: “The young lady who accepted our order agreed to take care of us and make shipment by October 1st, with shipments complete by October 10th, and it so specifies in our duplicate.” On October 22 the plaintiff shipped the shoes by express to the defendant at Atlanta, Georgia, and they were tendered to the defendant on the 24th and rejected, the defendant writing the plaintiff on that date as follows: “We may also add that the express company this day offered the delivery of your shipment which is covered by your invoice under date of October 22, and we refuse to accept them, inasmuch as you shipped these shoes so late after receiving our cancellation.” Whereupon the plaintiff stored the goods for the defendant and brought suit for the contract price thereof. The defendant contended that the plaintiff breached its contract in not shipping the shoes ordered within the time specified by the contract. The salesman to whom the order was given testified that nothing was said by the defendant at the time the order was given about any other shipping date than October 10, and that she told the defendant the plaintiff would try to get the shoes to him about October 10. The jury returned a verdict in favor of the plaintiff for the [686] amount of the purchase price, the defendant’s motion for a new trial was overruled, and to this judgment of the court exception is now taken. Judgment affirmed. Stephens and Bell, JJ., concur.