Opinion
35396.
DECIDED FEBRUARY 9, 1955.
Certiorari. Before Judge Rees. Sumter Superior Court. August 18, 1954.
Arnold, Golden Gregory, Fort Fort, for plaintiff in error.
H. B. Williams, contra.
The court erred in overruling and dismissing the certiorari for the reasons given in the body of the opinion.
DECIDED FEBRUARY 9, 1955.
Al Segler (hereinafter called the defendant) was found guilty of violating the wholesale ordinance of the City of Americus (hereinafter called the plaintiff), relating to hardware dealers. Briefly, the facts are that the defendant was the salesman and truck driver for Acme Sales Company, Inc., with its principal place of business in Atlanta, Georgia. Acme Sales Company, Inc., entered into a contract with Tanner-Brice Company, a corporation with its principal place of business in Vidalia, Georgia.
The contract involved in this case reads: "This agreement, made this 1st day of January, 1954, between Acme Sales Co., Inc., and Tanner-Brice Co., a corporation (hereinafter called the retailer) with its home office in Vidalia, Ga.: Witnesseth, That in consideration of the mutual promises of the parties hereinafter set forth, and the sum of $1.00 paid by the retailer to Acme Sales Co., Inc., the receipt of which is hereby acknowledged, the parties agree:
"1. Subject to the terms and conditions hereinafter set forth, Acme Sales Co., Inc. shall lend to the retailer, merchandise display rack, to be delivered to the retailer's premises and to be used for the display and sale of merchandise purchased by the retailer from Acme Sales Co., Inc. and for no other purpose whatsoever. Such merchandise display rack shall bear a legend or device reading as follows: Property of Acme Sales Co., Inc. which legend or device shall not be removed or defaced by the retailer. Title to the merchandise rack shall remain in Acme Sales Co., Inc.
"2. Retailer agrees: (a) Not to use the merchandise display rack for any other purpose than for displaying thereon merchandise purchased from and authorized to be displayed by Acme Sales Co., Inc.
"(b) To keep said merchandise display rack at Piggly Wiggly Store in Americus, Ga. and not to remove same from said premises except with the written consent of Acme Sales Co., Inc.
"(c) Not to encumber, dispose of or suffer anything whereby the merchandise display rack may be attached, become subject to any lien or encumbrance, destroyed or damaged, or by which the title of Acme Sales Co., Inc. to said property may be in any way altered or impaired.
"(d) To purchase from Acme Sales Co., Inc. the merchandise to be displayed on said merchandise display rack. Acme Sales Company, Inc. agrees: (a) To deliver to the retailer the merchandise to be displayed on said rack with the retail prices affixed to the individual items.
"(b) To mark said merchandise with prices which are competitive with other sellers of the same product in that particular area.
"(c) To comply with any Fair Trade Laws in effect.
"(d) To invoice the merchandise at the above-mentioned retail price less a discount of 25%, net 10 days, delivered to the designated stores, except in those cases where special prices are agreed upon for the purpose of an advertising or promotion.
"(e) To repurchase from retailer at cost to him all of said merchandise not sold by retailer.
"3. Either party may, after ninety days from the date hereof, terminate this agreement by giving to the other party thirty days written notice thereof. Upon the termination of this agreement by whatever means effected, Acme Sales Co., Inc. shall have the right to enter upon the retailer's premises and remove the merchandise display rack with or without legal process and retailer agrees to surrender same to Acme Sales Co., Inc. in the same condition in which it was received by the retailer, natural wear and tear excepted.
"4. This agreement and the performance of the Acme Sales Co., Inc. under it, is contingent upon and subject to any laws, rules or regulations affecting the priority allocation and/or rationing of materials and/or manpower." This contract was signed "Acme Sales Company by Hollis Fort, Jr.; Tanner-Brice Company, by John Brown."
Under the contract set out hereinabove, Tanner-Brice agreed to purchase, and Acme agreed to sell merchandise from an agreed list of articles at an agreed price, the exact articles not being specified except as "merchandise to be displayed" on Acme's rack, loaned to and placed in the store. This rack was serviced at regular intervals, and the "merchandise to be displayed" was replaced or changed according to indications from sales made during the interval as to which articles were moving and which were not. The defendant was a truck driver for Acme, with instructions to made deliveries. His truck was loaded from Acme's plant with a variety of merchandise, and from this he selected, from physical indications and consultation with and approval of the store manager, the articles to be left and the articles to be removed and taken back. The defendant invoiced articles sold and returned, and the store manager approved the correctness of the same. The defendant then delivered the invoice to the purchaser, Tanner-Brice, in Vidalia. Under the contract such invoices were due and payable within 10 days. The invoices were all billed out from Acme Sales Company, Atlanta.
Error is assigned, in the application for certiorari, on the exclusion of testimony that all payments are made by Tanner-Brice Company directly to Acme Sales Company in Atlanta, and we think this testimony would also have been relevant to show the manner of sale, and would, if admitted, have been undisputed. The whole set-up as above outlined, in connection with the contract provision that Acme is to repurchase from retailer at cost all merchandise not sold by retailer, demands the conclusions that the sale was not a consignment sale, but was a requirements contract sale, title to the merchandise passing to Tanner-Brice immediately on delivery, with an option of repurchase, title to materials taken away reverting at the time of removal from Tanner-Brice to Acme. Newburger Bro. v. Hoyt, 86 Ga. 508 ( 12 S.E. 925).
This being so, this case is controlled by a recent decision in Kirkpatrick v. City of Conyers, 90 Ga. App. 74 ( 81 S.E.2d 844). There a requirements contract for the sale of gas was involved. The evidence showed that Kirkpatrick was a truck driver for Lithonia Gas Company; that the company had a home office in Lithonia, Georgia; that it entered into prior agreements with certain persons in Conyers "to test the quantity in the consumer's tank and replenish with gas as necessary to prevent the consumer from running out of fuel." Title to the gas changed to the purchaser immediately upon delivery, as evidenced by the fact that in some cases cash was immediately paid for the amount placed in the tanks; in other cases the purchaser was billed from the home office. As to the contract, this court held as follows: "The system used is that a general order was given, later to be carried out by the delivery truck. The amounts of gas used each time a tank was checked, and perhaps the price, might change, but all this was a matter of filling a prior order."
In the case at bar, the system used was that a general order for "merchandise to be displayed" was given, later to be carried out by a delivery truck. The amount of the order and the price might change. The individual articles included in the order might change from delivery to delivery, but all were articles within an agreed list of merchandise, which was known to and contemplated by the parties entering into the agreement, just as there might have been different grades of gas involved in the Kirkpatrick case, all of which, however, would come within the contemplation of the parties to that agreement. In both cases there is a prior order for a certain type of merchandise, from a company whose location is elsewhere than in the plaintiff municipality. In both cases there is a delivery which, as to quantity, is unascertainable until the arrival of the delivery truck. In both cases title passes upon delivery. In both cases there are periodic deliveries carried out under the terms of the prior contract. It necessarily follows that, if the contract in the Kirkpatrick case constituted a prior order, the contract here does likewise. Accordingly, the transaction is not one of simultaneous order and delivery, and the ordinance requiring the licensing of wholesale hardware dealers does not apply, since its application would contravene the express provisions of Code § 92-4105. The conviction of the defendant truck driver here is erroneous and should be and is reversed.
Judgment reversed. Townsend and Carlisle, JJ., concur.