Opinion
27696.
DECIDED OCTOBER 21, 1939. REHEARING DENIED NOVEMBER 15, 1939.
Complaint; from Pulaski superior court — Judge Graham. March 21, 1939.
H. E. Coates, for plaintiff.
H. F. Lawson, Roger II. Lawson, for defendant.
The court erred in directing the verdict for the plaintiff.
DECIDED OCTOBER 21, 1939. REHEARING DENIED NOVEMBER 15, 1939.
The Crescent Hat Company sued R. Silver on open account for $225.75, the purchase-price of 11-1/2 dozen hats alleged to have been sold to the defendant, which she refused to take and pay for. The petition alleged that the hats were stored for the defendant's account. The defendant denied each paragraph of the petition. By amendment she admitted ordering the goods, but alleged that she canceled the order in writing on July 23, 1937; that she did not contract with the plaintiff to have her name put inside the hats; that she had authority to cancel the order; and that it was the custom of the plaintiff to recognize the cancellation. Abraham Silverman testified: that he was the same person as A. Silverman; that on April 24, 1937, he was connected with the Crescent Hat Company as a representative selling hats on the road, and was still so connected in the same capacity; that he filled out the order identified; that the word "Silverman" following the word "salesman" was in his handwriting; that the order was for 11-1/2 dozen hats which were to be made up especially for the defendant; that at the time the order was taken the hats were not in existence; that the hats were made up in accordance with the terms of the order in every particular, and the purchase-price was $225.75; that while the hats were to be shipped on September 1, 1937, they were actually delivered to American Railway Express Company on August 30, 1937; that the hats were made up ready for shipment before July 23, 1937; that they were made up before any notice was received by the plaintiff that the defendant wanted to cancel the order; that the hats were now in New York in the warehouse of the plaintiff, on storage for the account of R. Silver, awaiting the outcome of this case; that no change was made in the order after he took it; that in the hat trade the word "tipped" means putting the name of the purchaser in the lining of the hat; that in the better-class goods the name is put on the sweatband and in the lining, and in the lower-priced goods on the lining only; that when the witness finished taking the order "Mr. Silver asked me if we would put his name in the hats;" that the witness replied that they would, and Silver said to put R. Silver, Hawkinsville, Georgia, in them; and that the duplicate order shows the same thing.
M. Silver testified that R. Silver was his wife; that he acted for her in placing the order for the goods in question; that neither the original nor the duplicate order was signed by him or his wife; that he contracted for the goods with A. Silverman; that he did not contract to have the hats "tipped;" that at the time he placed the order Silverman agreed that R. Silver would have the right to cancel the order, and in accordance with this agreement R. Silver did cancel the order by letter produced by the plaintiff in response to a notice; that after the defendant was notified that the claim had been placed in the hands of an attorney for collection, the witness went to the American Railway Express Company to ascertain if the shipment had ever arrived, and was informed by the agent of the express company that the plaintiff had instructed the agent to return the shipment, which the agent did; that it is the custom of the trade that when the right of cancellation is given by the representative, the right can be exercised, and in this instance it was exercised; that the duplicate order identified was a duplicate given to him and left with him by the salesman at the time the order for the hats was given. At the top left of the sheet containing the so-called "order" is the following: "Date sold 4-23-37. Salesman, Silverman. Order acknowledged 5-3. Approved S." At the bottom of the order the following appears: "All claims, etc. Buyer's signature ____." The space for the signature of the buyer was left blank. The duplicate order given to the defendant at the time the order was taken is an exact copy of the original. The defendant wrote to the plaintiff, on July 23, 1937, to cancel the order, which the plaintiff refused to do.
The court directed a verdict for the plaintiff in the amount sued for. The defendant excepted to the overruling of her motion for new trial.
The direction of the verdict was error, for the reason that there were issues of fact which should have been submitted to a jury. There was no written contract binding upon the defendant, because she did not sign it, and because no one authorized by her to do so signed it. Friedlander v. Schloss, 43 Ga. App. 646 (4) ( 159 S.E. 870). Therefore the provision in the contract that the order was not subject to cancellation was not binding on her as a contract. Neither was it notice that the agent did not have authority to contract that the order could be canceled. Ordinarily the duty and authority of a traveling salesman is to take orders subject to acceptance and approval of his principal. Dannenberg Co. v. Hughes, 30 Ga. App. 83 ( 116 S.E. 892). Under the evidence in this case the jury might or might not have inferred that the agent had the authority to authorize cancellation, from the proved fact that the agent delivered the duplicate to the agent of the defendant when the order was taken; or that there was no written or oral notice to the defendant that the order was accepted. If approval by the principal was necessary, the jury might have found that the cancellation order amounted to a revocation of the order before notice of acceptance was given to her. If approval by the principal was necessary to complete the contract, and the defendant revoked the order before she was notified of its acceptance, it would make no difference that the plaintiff went to the trouble and expense of making the hats and putting the names in. All these issues were for the jury, and it was error to direct the verdict.
Judgment reversed. Stephens, P. J., and Sutton, J., concur.
ON MOTION FOR REHEARING.
The defendant in error very ably and strongly urges that the attempt on the part of Mrs. Silver to cancel the order by letter is an affirmance and an adoption of a contract. If the salesman had authority to make a complete and binding contract, his signature to the order bound the plaintiff; and although the purchaser did not sign the order or contract, under the decisions of our courts the effort to cancel the order in writing would bind her, even though by such writing she sought to cancel the agreement. Capital City Brick Co. v. Atlanta Ice Coal Co., 5 Ga. App. 436 ( 63 S.E. 562). On the other hand, if, as is contended by the defendant in error, the salesman had no authority to make a complete contract, but had authority to submit the offer to buy to his principal for acceptance, in the absence of proof of acceptance and notice to the buyer there was no binding contract, and the effort in writing to cancel the contract was no more than the withdrawal of the offer before acceptance. It could not be an affirmance of a contract, because it would require acceptance to make the contract complete. In Bush v. American Mills, 28 Ga. App. 324 ( 111 S.E. 678), there was an acceptance of the offer before the attempt to cancel was made. That fact distinguishes that case from this one. There is no evidence in this case of an express acceptance of the order, and no evidence showing that anything else could or should constitute an acceptance. Certainly, if the plaintiff had not made the hats and had refused to deliver them if it had never accepted the order, it would not be liable for a breach of contract.
Rehearing denied.