Atlanta Chemical Co. v. Hardin Bag Co.

Stephens, J. 1. Notwithstanding a written contract may contain a provision that the writing expresses thé entire contract, and that any changes therein must be in writing, yet where the contract is incomplete in any respect, and its meaning is not manifest on its face, it may be added to and be completed by a mutual understanding between the parties as to its meaning and import. “‘The meaning placed on the contract by one party, and known to be thus understood by the other party, at the time, shall be held as the true meaning.” Civil Code (1910), § 4267. Thus, where a written contract, executed between a manufacturer of bags and a fertilizer dealer who sells fertilizers which are shipped in bags, provides for the sale by the manufacturer to the dealer of “quantity, new 35000, goods 40/10 oz., cut 54", price plain, per M. 136.50,” and the meaning and construction placed upon the contract by both of the contracting parties is that it is a contract for the sale of burlap bags, the contract constitutes a contract for the sale of burlap bags. The description of the articles sold as thus contained in the contract, which is manifestly in the language of the trade, is subject to be translated into its true meaning and to explanation by parol. Where, as thus translated and explained, it is a description of the goods sold as being 35000 new plain burlap bags of a definite size and weight, at a price of $136.50 per thousand, the description is sufficient as an identification of the goods sold so as to constitute a contract of sale under which, in the event of the purchaser’s failure to accept delivery of the goods, the goods contracted for can be determined and identified. 2. In this suit by the manufacturer against the dealer, to recover for an alleged breach by the defendant of the contract for the sale of bags, in failing to accept delivery, the petition set out a cause of action, and the court did not err in overruling the demurrer. 3. From the evidence it appeared that the plaintiff and the defendant entered into a written contract for the manufacture by the plaintiff for the defendant of a quantity of burlap bags of the description contained in the contract, to be delivered during a specified period, that before the time for delivery the plaintiff insisted upon the defendant’s accepting delivery of the bags contracted for and giving to the plaintiff shipping instructions, and that upon the defendant’s failure to give shipping instructions the plaintiff, with the consent and at the request of the defendant, extended the time for delivery, that before the arrival of this date the plaintiff insisted upon the defendant’s accepting- delivery and giving shipping instructions, which the defendant failed to do, and the defendant refused to take any bags, giving as a reason therefor that the — 749 — condition of the defendant’s business did not warrant it in taking the bags, the inference is authorized, whether or not the custom to require shipping instructions as a condition precedent to the obligation resting upon the seller to make delivery became a part of the contract or not, that the plaintiff offered to make delivery under the terms of the contract, and the defendant refused to accept and thereby breached the contract. There being evidence tending to establish the amount of the plaintiff’s damage as a result of defendant’s breach of the contract in failing to accept delivery, the verdict found for the plaintiff was authorized. Decided September 29, 1934. Weltner, Meadow & Russell, for plaintiff in error. D. F. McGlatchey Jr., Welborn B. Cody, Harold Hirsch, Marion Smith, contra. 4. Since it appears without dispute, from the evidence adduced, that the plaintiff tendered delivery to the defendant in accordance with the terms of the contract, 'it is immaterial whether there was, as a part of this contract, any custom of the trade that where a bag manufacturer contracts to manufacture and deliver bags during certain named months in the contract, — as January and Eebruary, the seller does not have to tender delivery until the purchaser gives the seller shipping instructions. 5. Under the above rulings, there is no merit in any of the grounds of the motion for a new trial. Judgment affirmed. Guerry, J., concurs. Jenkins, P. J., dissents. Sutton, J., disqualified.