1. In order for the directing of a verdict to be error, it must appear that there was some evidence, together with all reasonable deductions and inferences from it, to support a verdict for the party against whom it was directed, and in determining this question the evidence must be construed in its light most favorable to the party against whom it was directed.
2. In an action to recover the alleged purchase-price of merchandise, the rule that the use of a part thereof by the defendant constitutes an acceptance of the whole does not apply where, under the express terms of the contract, the merchandise was to be held by the defendant as the property of the plaintiff, and the defendant was to account to the plaintiff and pay for the merchandise as the same was used; but under such circumstances the defendant holds the property as the bailee of the plaintiff.
3. The presumption that arises under Code § 38-120 upon the failure of a party to answer correspondence within a reasonable time, to the effect *Page 146 that he is presumed to admit the propriety of the acts mentioned in the correspondence and to adopt them, is a rebuttable presumption and subject to explanation.
4. There being evidence in the instant case that would have authorized the jury to have found a verdict in favor of the defendant, it was error to direct a verdict against him.
DECIDED DECEMBER 3, 1948. The defendant in error, Charles E. Paden, trading as Lubri-Gas Laboratories, hereinafter referred to as the plaintiff, brought suit in the Civil Court of Fulton County for $936.19, the balance alleged to be due on an itemized account, against the plaintiff in error, C. B. Whitaker, trading as Whitaker Oil Company, hereinafter referred to as the defendant.
The latter filed an answer and cross-action, in which he denied indebtedness to the plaintiff, and by way of cross-action alleged substantially: that the plaintiff is indebted to him in the sum of $3114.91, because in the early part of 1946, the plaintiff advised the defendant that he intended to establish a southeastern distributing office for Lubri-Gas in Atlanta; that he would set up an extensive sales and distributing organization for the product; that he proposed to the defendant that he mix the chemicals to be supplied by the plaintiff, with oil, thus making the product, and fill the orders as they would come in from the plaintiff's distributors; that this was agreed upon with the further provision that the chemicals to be furnished by the plaintiff were to be paid for by the defendant as used; that during the negotiations the plaintiff advised the defendant that he had already shipped 5 drums of the chemicals to Atlanta consigned to himself; that they were in a warehouse and storage charges mounting up; that the plaintiff requested the defendant to store same in his (defendant's) place of business as the property of the plaintiff; that the defendant thereupon paid the storage amounting to $48.27, removed them to his place of business, stored them as the property of the plaintiff, and so advised the plaintiff; that he still so holds them subject to the plaintiff's orders; that the plaintiff employed the defendant as his agent to hold a sales banquet, which the defendant held and paid for at a cost of $1066.64 for which the plaintiff agreed to reimburse *Page 147 the defendant; that at the instance of the plaintiff the defendant paid an attorney fee of $500 in a suit involving Lubri-Gas; that the plaintiff failed to establish a sales and distributing organization, and no orders were placed with the defendant for the product; that on or about August 30, 1946, the defendant paid the plaintiff $2000 as an advancement on anticipated business which the organization the plaintiff failed to set up was expected to bring in, resulting in loss to the defendant of said sum; that on September 9, 1946, the defendant discovered that, instead of the plaintiff having a distribution system, he had assigned all the southeast territory to one N. F. Huber; that the defendant filled several orders from the accounts of Mr. Huber, using a portion of 1 drum of the chemicals belonging to the plaintiff, the value of which is $500, and for which he is ready to account by setting off this amount against his claim. The defendant prayed for judgment for $3114.91.
The itemized statement sued on by the plaintiff shows a charge of $5788.75, which is credited by each of the items sued for by the defendant and the additional credit of $1237.50 for oil, leaving the balance of $936.19, for which sum, the court, on the trial and at the conclusion of the evidence, directed a verdict for the plaintiff.
The defendant filed a motion for new trial on the general grounds, which he later amended by adding one special ground assigning error on the direction of the verdict against him. On the hearing the trial judge overruled the motion, and this judgment is assigned as error. The question presented here is controlled by the contract between the plaintiff and the defendant. If the defendant was to account to the plaintiff and pay him for the chemicals which he was holding in his place of business as the property of the plaintiff, as the same were sold by him, then he was the bailee of the property which he held on consignment. See Furst Bros. v. CommercialBank of Augusta, 117 Ga. 472 (1) (43 S.E. 728); McKenzie v.Roper Wholesale Groc. Co., 9 Ga. App. 185 (70 S.E. 981);Johnston Crews *Page 148 Co. v. Smith, 161 Ga. 382 (131 S.E. 65). This is the contention of the defendant. If the contract was one of outright sale to the defendant by the plaintiff, then the title to the property passed to the defendant, and of course the plaintiff is entitled to recover the contract price thereof. This is the contention of the plaintiff.
In order for the direction of a verdict to be error, it must appear that there was some evidence, together with all reasonable deductions and inferences from it, to support the contentions of the defendant.
The verdict having been directed in favor of the plaintiff, the evidence must be construed in its light most favorable to the defendant to determine if there is any to support a verdict for him.
Although there was some correspondence, there is no writing that definitely and conclusively shows the acceptance of a written offer. The contract, therefore, was parol, and the revelation of its terms must depend upon the testimony of the parties together with circumstances supporting either or both.
The circumstances that indicate a meeting of the minds of the parties hereto on an outright sale of the chemicals, in accordance with the contention of the plaintiff, consist of: letters written by the plaintiff to the defendant inferring that the chemicals had been sold to the defendant, to which no response was made to the contrary; an invoice mailed by the plaintiff to the defendant showing a sum due for the chemicals together with certain credits; payment by the defendant of obligations of the plaintiff, consisting of the attorney fee, the freight, the Ansley Hotel sales-banquet expenses, the payment by the defendant to the plaintiff on the account, and use by the defendant of a part of the chemicals.
Although these circumstances strongly point to the contentions of the plaintiff, yet they are not conclusive evidence that the chemicals were sold unconditionally to the defendant. The circumstances are subject to explanation by the defendant. In his answer and cross-action he undertakes to explain them. He also undertakes to explain them in his testimony.
It is insisted by counsel for the defendant that Code § 38-120 *Page 149 — which provides that, "in the ordinary course of business, when good faith requires an answer it is the duty of a party receiving a letter from the other to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent and to adopt them" — applies in this case; that the defendant having received letters referring to the transaction as an outright sale and having received an invoice designating the transaction as such and having failed to reply thereto contradicting the same, he is now presumed to admit them. This is true. However, this presumption is rebuttable. See Travelers Ins. Co. v. Sheppard,85 Ga. 754(21) (12 S.E. 18); Metropolitan Life Ins. Co. v. Shalloway, 151 Fed. 2d, 548. Nor does an invoice designating a transaction as a cash sale conclusively establish it as such. See FurstBros. v. Commercial Bank of Augusta, supra. Counsel for the defendant also contend that the use of a part of the product by the defendant conclusively establishes the transaction as one of outright sale, and in support of this contention they citeWatkins v. Paine, 57 Ga. 50; Arnall-Couch-Powers Co. v.National Discount Co., 11 Ga. App. 487 (75 S.E. 816);Cohen v. Arenson, 29 Ga. App. 723 (116 S.E. 658);DeVaughn's Son v. Ohio Pottery Glass Co.,12 Ga. App. 50(1) (76 S.E. 793). The Watkins case is not controlling here, because in that case the complaint of the defendant was that some of the articles of furniture shipped were not ordered, that some of the ornaments on the furniture failed to arrive, and that the whole shipment was late. The Arnall-Couch-Powers Co. case merely holds that, where the contract which is the basis of a suit is an entire one, the defendant cannot accept a part of the goods purchased and reject a part. The Cohen case, supra, holds that where 12 suits are ordered and at first rejected, then later one of the suits is used and the remaining 11 returned, the purchaser is liable for all 12 of the suits. Obviously this constituted an entire contract, and the court appropriately held that the purchaser could not accept a part and reject a part; that his acceptance of a part constituted an acceptance of the whole. The DeVaughn's Son case is to the same effect.
Here it is contended by the defendant that, under the express *Page 150 terms of the contract, he was to use a part of the chemicals, that he was use the chemicals as the orders came in, and that he was to pay for the chemicals as used. Certainly under such circumstances a use of the part of the goods would not constitute an acceptance of the whole.
In support of his contentions, aside from his efforts to explain his payment of the attorney fee, his payment of the hotel banquet expenses, his payment of the freight, and his payment of $2000 "as an advance," the defendant testified that he never ordered the chemicals or agreed to pay any price for them, and that when he took the drums out of storage at the instance of the plaintiff, he wrote the plaintiff that he was holding them as the property of the plaintiff. The record discloses a letter to this effect, in which the defendant states regarding the chemicals that "we will hold as your property until we come to some definite agreement after our August 15th meeting." Of what this agreement consisted is now the principal issue in this litigation. The defendant also testified that under the contract he was to pay for the materials only as used; and that he was to be the blender of the product in the plaintiff's organization. The testimony of the plaintiff, which is supported by most of the circumstances, was to the effect that the agreement reached by the parties was one of outright sale of the chemicals.
The evidence was therefore in conflict on the most material issue in the case and its determination was essentially a jury question. Accordingly, the verdict should not have been directed.
The judgment of the trial court overruling the motion for a new trial was therefore error.
Judgment reversed. MacIntyre, P. J., and Gardner, J.,concur.