Opinion
45273.
SUBMITTED APRIL 14, 1970.
DECIDED APRIL 24, 1970.
Action on contract. Waynesboro City Court. Before Judge Fryhofer.
Percy J. Blount, for appellant.
Odom Dendy, Florence H. Dendy, Lewis Lewis, Preston B. Lewis, Jr., for appellee.
Evidence of course of dealing and usage of trade is admissible under Code Ann. § 109A-1-205 to amplify, supplement or qualify the terms of an agreement, but it does not create an agreement where none previously existed.
SUBMITTED APRIL 14, 1970 — DECIDED APRIL 24, 1970.
In a suit for breach of contract (and damage to business reputation) plaintiff appeals from a judgment for defendant on the general grounds.
Plaintiff is in the wholesale lumber business; defendant operates a sawmill. There had been prior dealings between the parties before the placing of the orders which are the basis of the dispute here. On March 6 and March 14, 1968, plaintiff's buyer telephoned defendant to place orders for lumber. Plaintiff claims it also received immediate confirmation and commitment for these orders from the son of defendant's president who took the orders. Plaintiff wrote up purchase orders for the lumber (which included the statements "Conf. Phone Sonny/Herb" plus the date) and sent them to defendant. On July 23, plaintiff received a letter from defendant's president saying they were returning the orders for cancellation and that they were sorry they could not fill them. The son testified that he did not accept the orders over the telephone but said he would have to consult his father. Defendant's president testified that upon receiving news of the orders, he called plaintiff and told them he could not fill the orders, but that plaintiff's buyer said to keep the orders and fill them when and if they could. Both parties produced witnesses who testified to custom and usage of trade in the lumber business as to when a telephone contract becomes binding.
Plaintiff contends the contract was made, according to the usage of the lumber trade, by telephone; that the parties had engaged in a similar course of dealing previously; that defendant never denied the contract within a reasonable time; that breach was clearly proved; and that the jury was unauthorized to return a verdict for defendant.
Code Ann. § 109A-1 — 205, cited by plaintiff, recognizes course of dealing and usage of trade. But for what purpose? To "(3) . . . give particular meaning to and supplement or qualify terms of an agreement." In other words, there must first be an agreement upon which these factors can be brought to bear. "Where there is no contract, proof of usage will not make one." Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 94 ( 167 S.E. 79, 85 ALR 1330).
Whether or not lumber dealers generally, or these particular parties, regularly make binding contracts by telephone, a telephone call does not automatically result in a contract. There was evidence here which would authorize the jury to find that this time no contract to buy and sell was made but that the parties merely agreed that the offer, represented by the orders, would be held open in the hope an acceptance might later be possible.
Judgment affirmed. Deen and Evans, JJ., concur.