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Complaint; from Fulton Civil Court--Appellate Division. June 2, 1952.
Where, in a suit on an open account for the price of goods sold, the evidence was insufficient to establish that the defendant owed the plaintiff any definite amount as the contract price of the goods or as the market value of the goods, it was not error to grant a nonsuit.
Harry M. Wolfe brought suit against the Brown-Wright Hotel Supply Corporation for $280.25 on an open account for the price of four chairs and a sofa. The defendant denied the indebtedness. The evidence submitted by the plaintiff on the trial of the case showed that the defendant had ordered furniture from Wolfe, whose place of business was in Chicago, on a form dated May 5, 1950, which stated, "Invoice in duplicate." The furniture was to be shipped to the Waverly Hotel, Columbus, Georgia; the items were specified by model name and number; the frames were to be finished as mahogany, and the upholstery was to be dark green leatherette. Wolfe received this order about May 10, and he in turn sent his own order to a factory in Indiana. Wolfe's order to the factory listed the prices of the pieces of furniture, but in the defendant's order to Wolfe, no prices were specified. The furniture was shipped to the Waverly Hotel in July, and an invoice was sent to the defendant on July 13. This invoice was not in evidence. The defendant wrote to the plaintiff on July 28, "with reference to our order No. A 3867, billed on your invoice No. 25187 of July 13," and in this letter stated that its salesman was at the hotel when the furniture arrived; that the furniture was upholstered in light green Duran plastic, and that "This order is being returned in the original carton and we ask that you please issue us a credit on same." This letter reached Wolfe on July 31, and later, on that same date, he received notice that the furniture was in his receiving department. He sent an assistant to see that material had been used to cover it. Wolfe's assistant found that all the pieces had the same covering, and he cut some of the covering from the selvage underneath the sofa as a sample, which was introduced in evidence. The covering was what is known in the furniture trade as dark green leatherette, that is, a synthetic coating applied to cotton cloth backing, and it was not Duran, which is a plastic covering material without backing. On July 31, Wolfe sent a part of the sample of the covering to the defendant and wrote that he would not credit the defendant with the price of the furniture because it had been made to order, had he requested shipping instructions. The defendant wrote back on August 8, stating that it was through error that the hotel had shipped the goods to Wolfe by express collect, and offering to pay the express charges if Wolfe would accept the goods for credit "until we can contact the customer [Waverly Hotel] and find out what his complaint of the material actually could be." Wolfe wrote two more letters on August 12 and 24, in which he insisted that the goods were exactly as ordered, asked for shipping instructions, and notified the defendant that if no such instructions were given he would ship the merchandise to the defendant in Atlanta. Wolfe shipped the furniture by rail from Chicago on September 11; the shipment arrived in Atlanta on September 22, but the defendant refused to take the furniture on the ground that it was "not furn. ordered," according to the notice of refusal given to Wolfe by the railroad. Wolfe instructed the railroad that the merchandise belonged to the defendant.
At the close of the plaintiff's evidence, the defendant moved for a nonsuit, which was granted . . . From this ruling, the plaintiff appealed to the Appellate Division of Fulton Civil Court, and he also assigned error on the court's exclusion of the plaintiff's exhibits 5, 6, 7 and 8, which were the letters from the plaintiff to the defendant dated August 7, 12 and 24, and the letter liens the defendant to the plaintiff under date of August 8. The appellate division affirmed the rulings of the trial court, on the ground that the defendant, not having agreed to a price for the merchandise, was obligated to pay the reasonable market value thereof, and that, as no evidence of market value was introduced at the trial, the plaintiff was properly nonsuited. The exception here is to this judgment.
Considered as an action of assumpsit for the reasonable value of goods sold without an agreed price, this case was properly terminated by a nonsuit because there was no evidence of the value of the goods or data from which such value could have been inferred. See Pickert v. Jones, 19 Ga. App. 488 (91 S. E. 908). Of course, a suit on an open account may be maintained for the price of goods sold under a contract where the price has been agreed upon by the seller and purchaser and where the seller has performed his part of the agreement and nothing remains to be done except for the purchaser to make payment. Chatham Abattoir &c. Co. v. H. K. Painter &c. Co., 28 Ga. App. 383 (111 S. E. 82). If any such contract was entered into by the parties here, then what were the provisions of the contract with respect to the price of the goods shown to be? The invoice, a copy of which was attached to the petition, was not introduced in evidence. While secondary evidence of the contents of a writing (if admitted without objection) is sufficient to support a verdict (Maynard v. Rawlins, 45 Ga. App. 91, 163 S. E. 269; Thomas N. Baker Lumber Co. v. Atlantic Mill & Lumber Co., 24 Ga. App. 749 (2), 102 S. E. 135), the evidence of the contents of the invoice in the present case was too uncertain and indefinite to support a verdict as to what was alleged to be a certain and fixed amount. The plaintiff's assistant testified: "At the moment I don't remember the amount due Harry M. Wolfe. I have to check that. I would say around $250. I have charge of the books and records of Harry M. Wolfe. I assist in the control of them. I don't have a copy of the invoice. As nearly as I can remember it is approximately $250." While the correspondence offered as evidence fails to show that there was any dispute between the parties over the price, still no mention of any price was made in the letters. The price was one of the essentials of the contract (Code 96-101) giving rise to the alleged indebtedness, which was denied by the defendant in its answer, and proof of the price, as the amount sued for, was necessary to prove the case as alleged. The evidence was insufficient to establish that the defendant owed the plaintiff any definite amount, as the contract price of the goods or as the market value of the goods, and therefore the nonsuit was proper. McCoy v. Meador, 140 Ga. 253 (78 S. E. 848); Sapp Brothers v. Mathis, 12 Ga. App. 273 (77 S. E. 102).
Concerning the exception to the court's refusal to admit in evidence some of the correspondence between the parties, the evidence so excluded, if it had been admitted, would not have rendered the judgment of nonsuit erroneous, and so this ruling, leaving no effect on the final judgment, need not be considered.
Judgment affirmed. Felton and Worrill, JJ., concur.
Smith, Kilpatrick, Cody, Rogers & McClatchey, contra.
I. A. Blanch, for plaintiff in error.
Saturday May 23 05:08 EDT

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