Robson & Evans v. Hale & Sons

Lumpkin, J.

(After stating tlie foregoing facts.)

The contract to purchase the oats was entire, although they were to be delivered in different lots monthly, at a stated price per bushel for each lot. The buyers could not receive some of the oats and rescind the contract as to the balance, without the consent of the sellers. A refusal to accept more oats after the first two shipments was a repudiation of the contract, not a rescission of it. When the buyers, without lawful cause, notified the sellers that they would not receive the remainder of the oats undelivered, this was a preach of the contract. Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279 ( 65 S. E. 50 ).

Under the previous rulings of this court, the sellers could not thereafter deliver other quantities of oats to a common carrier for transportation to the buyers, treat this as the equivalent of delivery to the buyers, and sue for the purchase-price of the oats as delivered. Oklahoma Vinegar Co. v. Carter & Ford, 116 Ga. 140 ( 42 S. E. 378 , 59 L. R. A. 122, 94 Am. St. R. 112 ); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 ( 56 S. E. 1030 ). The sellers could treat the contract as breached, and pursue any of the remedies stated in the Civil Code, § 4131. One of these was to sell the property as the agents of the buyers, after notice and in a reasonable time, and recover the difference between the contract price and the price on resale.

It will be observed that under the contract the sellers were not required to deliver the oats except in monthly shipments; and therefore they were not obliged to buy oats for each delivery until the time for it, if they did not have the oats on hand. It would seem that the buyers ought not to be better off by reason of breaking the contract than by complying with it. It may be, however, that the sellers should take this into consideration in electing which remedy they will pursue, and not elect to treat the notice as an entire breach and resell the whole, if they have not the property on hand for resale. Where a buyer refuses to receive goods and the seller elects the remedy of a resale, the general rule is that the resale must be in a reasonable time; and what is a reasonable time is a question of fact for the jury. North Georgia Milling Co. v. Henderson Elevator Co., 130 Ga. 113, 116 ( 60 S. E. 258 ). In Bainbridge Oil Co. v. Crawford Oil Mill, 138 Ga. 741 ( 76 S. E. 41 ), the seller refused to deliver goods deliverable in installments. The *756 buyer refused to treat the contract as at an end, and demanded that deliveries be made at the times specified; and on failure of the seller to comply therewith, the buyer sued for the difference between the contract price and the market price at the time specified for each delivery. See also Ford v. Lawson, 133 Ga. 237 (5, 6), 238 ( 65 S. E. 444 ).

If it be assumed, under the facts of this case, that- the sale of the entire lot of oats should have been made in a reasonable time after the notice of refusal to. receive the balance was given to the plaintiffs on April 6, nevertheless the facts of the case are to bé considered in determining the question of reasopableness. Here the evidence as to the contract, the conduct of the parties, the repeated letters and telegrams of the sellers, urging the buyers to give instructions and offering to release them on certain terms, but not otherwise, and the failure or delay on the part of the buyers in answering, was sufficient to authorize the jury to find that the delay in selling until June 13 was not unreasonable. Mendel v. Miller, 126 Ga. 834 ( 56 S. E. 88 , 7 L. R. A. (N. S.) 1184).

The verdict was right; and none of the rulings complained of, if they had even apparent merit when considered alone, were such as to furnish ground for reversal.

Judgment affirmed.

All the Justices concur.