Hanks Foundry Co. v. Woodstock Iron Works , 127 Ga. 108 ( 1906 )

Cobb, P. J:

(After stating the facts.) The writing is signed, by the defendant, but it is not signed by the plaintiff, unless the-signature of Eoust is to'be treated as the signing of its authorized agent and binding it to the terms of the contract. The defendant, contends that the plaintiff was not bound by the writing as originally signed, and therefore that the undertaking was unilateral; it being bound and the plaintiff not bound. The plaintiff alleges that-it accepted the contract, and, in accordance with its terms, shipped a portion of the pig iron embraced therein, which was accepted and paid for by defendant. The writing on its face set forth that the sale was made for the account of the Woodstock Iron Works. If Eoust was the agent of the Woodstock Iron Works, as he contracted in the name of his principal, the writing, although signed by him in his individual name, would prima facie bind his principal, although the writing was signed only in his individual name. Of course, if Eoust had no authority to make the contract in behalf of the Woodstock Iron Works, that company would not be bound, and. could repudiate it at their pleasure. If he did have authority* they were bound, by his signature. If he did not have authority, they should have repudiated it promptly upon notice that it had been made. Under the allegations of the amendment, he not only had authority to make the contract, but this authority was known to the defendant at the time it was made. For the purp'oses of the demurrer, therefore, the contract as set out in the original petition is to be treated as a binding contract between the plaintiff and defendant.

The original petition did not allege the shipment of the 48 1/2 tons of pig iron within the dates set forth in the original contract; neither did it allege any effort to ship during that time; and hence the original petition was defective for want of these averments. The amendment alleges that the terms of the original agreement, as to the time of shipment, were changed by mutual consent, and that the shipments were made at any time during the year 1903, when ordered by the defendant. It is nowhere alleged that the defendant ordered any shipment during that period. It is alleged, however, that on September 2, 1903, the defendant peremptorily refused to accept or pay for the remaining portion of the pig iron •embraced in the contract, which was, up to that time, undelivered. This constituted a breach of the contract as it existed in its altered shape. Under the allegations, the defendant was bound to receive the pig iron during the year 1903 at such dates, during that period, as the defendant should order the same. There was nothing in the new agreement which relieved the defendant from the obligation to take the pig iron, but the time at which it was to take it was to be determined by the defendant within the limits fixed, that is, during the. remaining portion of the year 1903. When, on September 2, 1903, the defendant refused absolutely to accept any more pig iron under the contract, this was a breach of the contract, .and the plaintiff was entitled to treat the contract as broken on that date and recover the difference between the contract price of the pig iron and the market price on that date, which is the damage alleged and the only damage alleged to have resulted from the breach. The absolute refusal to accept the pig iron under the contract would amount to a waiver of any of the conditions in the •contract necessary to an acceptance if the pig iron had been shipped in strict accordance with the contract; that is, in the absence of such absolute refusal, it would have been incumbent upon the plaintiff, before it could recover, to have shown that the defendant had ordered the delivery on a certain day, and that this delivery had been made in the manner prescribed in the contract, and that a sight draft had been drawn in accordance with the stipulations in the agreement. As the plaintiff was put on notice that the pig iron would not be accepted at all, it was under no obligation to go through the form of placing the pig iron on board of the cars at Anniston, shipping it to Rome, and drawing a sight draft therefor, provided it appeared that the plaintiff was in a position, on that date, to have complied with its contract and made the delivery if the delivery had been called for; and this is alleged in the petition. The petition as amended set forth a cause of action, and was not subject to any of the objections raised in the demurrers.

Judgment affirmed.

All the Justices concur.