Opinion
33561.
DECIDED JULY 16, 1951.
Complaint; from Fulton Civil Court — Judge Etheridge. February 19, 1951.
Andrew A. Smith, C. Donald Lowrie, John Kirby, for plaintiff.
Nick Long Jr., for defendant.
1-2. "The mere acceptance of purchased goods after the agreed time of delivery, will not of itself, and unaccompanied by attending circumstances manifesting such an intention on the part of the buyer, amount to a waiver of the resulting damages on account of delay."
3. No attack being made on the charge of the court presenting the contentions of the parties and the issues for its determination, and the charge being full and fair, the verdict will not be disturbed on the general grounds where there is competent evidence to support it.
DECIDED JULY 16, 1951.
Cutler-Hammer Incorporated, whom we shall call the plaintiff, brought suit against R. A. Bell, doing business as Bell Electric Company, whom we shall call the defendant, alleging that the defendant was indebted to it in the sum of $958.98 and interest from October 15, 1947, by reason of the following facts: that on August 17, 1946, the plaintiff had accepted an order for 300 1500-watt and 300 200-watt 220 volts special tubular heaters to be shipped to the defendant C. O. D.; that the defendant during May, 1947, had accepted delivery of and paid for half of the merchandise ordered but had refused to accept delivery on the remaining half; that the merchandise ordered was made especially for the defendant and was of a type for which there is little demand, and that the salvage value to the plaintiff would be negligible; that the plaintiff was ready to complete delivery.
The plaintiff filed various amendments. One amendment attached a copy of the order signed by the defendant on which the suit was based and of a supplemental undated letter from the defendant received by the plaintiff on or about January 15, 1947, and which contained shipping instructions.
As finally amended paragraph 4 of the petition read as follows:
"That said goods were to be shipped to the defendant pursuant to the instructions of the defendant as outlined in said `signed order' attached to the petition as Exhibit `A', and in accordance with supplemental written shipping instructions contained in undated letter subsequently received by petitioner from the defendant on or about 15th day of January, 1947, a copy of which letter is hereto attached, made a part hereof and marked Exhibit `B' hereof. That subsequent to receiving said letter . . your petitioner was never at any time thereafter able to get from said defendant shipping instructions on the 300 heaters, recovery for which is sought in this action, although petitioner has stood, ready, able, and willing to make delivery to defendant under said signed order and supplemental letter at all times since the 15th day of January, 1947. That on every day subsequent to August 17, 1946, the date of the original signed order, Exhibit `A' to the petition, the defendant verbally notified the petitioner to withhold shipment on said order until defendant gave petitioner further shipping instructions, which further shipping instructions the defendant continued to withhold verbally until your petitioner received from the defendant on or about January 15, 1947, written shipping instructions as contained in said supplemental letter Exhibit `B' hereof."
The defendant answered, alleging that the contract provided for the delivery of the heaters within 19 weeks, later amended to 15 weeks, from August 17, 1946, that the plaintiff had failed to deliver any of the heaters within the agreed time, and admitted its refusal to accept the remaining 300 heaters.
The defendant also filed a cross-action alleging that the plaintiff was indebted to it in the sum of $4500, that the heaters ordered were to be delivered on or before 19 weeks from August 17, 1946; that the defendant had on hand 300 orders for heaters which were to be filled for the 1946 Christmas season; that the plaintiff knew the heaters were being purchased for resale; and that because of failure to deliver, the defendant's orders were cancelled, damaging him in the sum of $4500.
The cross-action was amended during the trial to allege an additional loss of $1035.98 because of expenditures "arising out of idle labor and idle equipment," the 19 weeks delivery provision was changed to 15; and tender of the 300 remaining undelivered heaters was denied.
The case was tried before a jury, which returned a verdict of $1000 for the defendant on its cross-action.
The plaintiff filed a motion for new trial, amended by the addition of two special grounds assigning error on the refusal of two written requests to charge. This motion was overruled and the plaintiff excepts.
1. The first special ground assigns error on the refusal of the court to give in charge the following written request:
"If delivery of property sold is made by the seller beyond the time contracted for, and accepted and paid for by the purchaser without protest upon the ground of delay, this would amount to a waiver by the purchaser of any right to damages against the seller for delay in delivery." It is not error to refuse to charge a request which is not abstractly correct. For a correct statement of the law applicable to the facts of this case see Bernhardt v. Federal Terra Cotta Co., 24 Ga. App. 635 ( 101 S.E. 588), from which the first headnote is quoted, Standard Coal Co. v. Eclipse Coal Co., 24 Ga. App. 717 ( 102 S.E. 137), and James Drew Company v. Breedlove, 30 Ga. App. 722 ( 119 S.E. 532).
2. The second special ground assigns error on the refusal of the court to give in charge the following written request: "The purchaser cannot successfully defend a suit by showing that the goods were not delivered within the time contracted for if he (the purchaser) accepted the delayed shipment without any protest, and made payments thereon. The purchaser by such conduct, would be held to have waived his right to insist upon the delivery of the goods within the time specified by the contract." This language is paraphrased from headnote 4 (b) of Lingo v. Phoenix Hermetic Co., 31 Ga. App. 547 ( 121 S.E. 253). That case cites Standard Coal Co. v. Eclipse Coal Co., 24 Ga. App. 717 (supra) in which case the distinction is clearly made between waiver of damages resulting from delayed delivery by acceptance and attendant conduct, and waiver by such acceptance of the right to insist upon the original terms of the contract as to time of deliveries. It is not error to refuse to charge a request which is not in all respects abstractly correct, or which, if given in the exact language of the request would be misleading or confusing. Standing alone, this request would seem to contain a correct principle of law but too broadly couched to make the refusal to give it exactly as requested reversible error.
3. As to the general grounds: No attack is made on the charge of the court as a whole or on any excerpt from the charge as given, and the analysis of the issues to be decided by the jury, being clearly and fairly presented to it, its verdict, when supported by any competent evidence will not be disturbed on the general grounds.
As to the right to recover for idle labor and equipment directly traceable to failure to deliver commodities within the time contracted for, see Ladd Lime Stone Co. v. MacDougald Construction Co., 32 Ga. App. 709 ( 124 S.E. 551).
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.