1. Under the evidence, with all reasonable deductions or inferences therefrom, the verdict for the defendant was demanded, and the court did not err in directing it.
2. The court did not err in excluding from the evidence the letter offered by the plaintiffs for the reasons stated in the opinion.
DECIDED JANUARY 21, 1949. REHEARING DENIED FEBRUARY 11, 1949. Charles S. Jacobowitz Company, a partnership, sued Henry C. Ferguson on February 12, 1948, for $4000 and interest, making substantially the following allegations: On October 2, 1946 the plaintiffs contracted with the defendant for the purchase of certain machinery and bottling equipment, paying $1000 on that date and $3000 on October 3, 1946 on the purchase price of $11,500; that it was agreed in the contract that shipment of the property would be made in not exceeding four weeks, and thereafter the defendant asked for more time stating that shipment would be made within a short period, "and finally, your petitioners not being able to get shipment in over a year from the date of purchase, authorized their attorney to cancel said contract *Page 590 and demand refund of the amount of four thousand ($4000) dollars which they had paid on said contract of purchase, which said demand was made on January 27, 1948; . . that defendant has failed and refused to refund the $4000 paid him as part of the purchase price . . although demanded to do so as herein set forth"; that the plaintiffs have at all times been able, ready and willing to accept the property, and have on numerous occasions demanded delivery which has been denied by the defendant, and plaintiffs elected on January 27, 1948, to rescind the contract. A copy of the alleged contract of sale was attached to the petition.
The defendant answered denying that the copy contract of sale as claimed by the plaintiffs was the entire agreement between the parties although it set forth in part the terms of the agreement, and alleged that the entire contract appears in two letters from the plaintiffs to the defendant and two letters from the defendant to the plaintiffs, copies of which were attached; and alleged that on October 29, 1946 the defendant offered to cancel the contract, but the plaintiffs declined such offer and reaffirmed the contract; that the machinery and equipment purchased had not been replaced by new equipment, and defendant had not agreed to a rescission of the contract and had not failed and refused to comply with the contract.
By amendment the defendant alleged that the machinery and equipment purchased by the plaintiffs was not replaced by new equipment until March 22, 1948, after the filing of the suit by the plaintiffs and the filing of the defendant's original answer; that the defendant had notified the plaintiffs of the replacement of the equipment purchased by new machinery, pursuant to the terms of the contract, and that the defendant had on March 23, 1948, tendered by registered mail to the plaintiffs the delivery of the machinery and equipment purchased, demanding the payment of the balance of $7500 on the purchase price, which tender was continued, and that for these reasons the plaintiffs were indebted to the defendant in the sum of $7500 for which defendant prayed judgment. A second amendment to the answer alleged that the plaintiffs had not accepted delivery of the property, and that when it was replaced by new equipment and became subject to delivery in accordance with the agreement between the parties, *Page 591 on or about March 22, 1948, the defendant stored it for the plaintiffs in Leesburg, Florida, where it had been in use.
It was stipulated by the parties that (1) the machinery and equipment which was the subject-matter of the litigation was not delivered or offered for delivery by the defendant to the plaintiffs prior to on or about March 22, 1948, on which date it was replaced by new equipment, and that (2) since the date stated the plaintiffs have refused to accept delivery of the property which has remained stored in Leesburg, Florida.
On the trial, after the introduction of evidence by both parties, on motion of counsel for the defendant, the court directed a verdict for the defendant for $7500, the amount of his counterclaim, and rendered judgment thereon. The exceptions here are to the action of the court directing the verdict for the defendant and entering the judgment thereon, and a ruling of the court during the trial excluding from the evidence a certain letter from the defendant to the plaintiffs. 1. The controlling question is whether the verdict directed for the defendant was demanded under the evidence, with all reasonable deductions or inferences therefrom, and the case turns on the evidence. The stipulation and the letters introduced in evidence show these facts: The plaintiffs, after negotiating with the defendant from sometime in July, 1946, after the property was advertised for sale, sent a written order to the defendant dated October 2, 1946, offering to purchase the property at $11,500 and providing under "shipping instructions" as follows: "It is agreed equipment can remain at the Coca-Cola Bottling plant, Leesburg, Fla., for a reasonable length of time, not to exceed four weeks." With this order a check for $1000 on the purchase price was sent. On October 3, another check for $3000 as a deposit on the purchase order was sent by the plaintiffs to the defendant. On October 7, the defendant wrote two letters acknowledging receipt of the checks as part payment on the machinery, which was then in use at Leesburg, Florida, one of which stated that "said machinery to be made available when replaced by new equipment," and that it would constitute a sales contract between the buyer and the seller on acceptance of *Page 592 the terms outlined therein. The other letter stated: "I am holding these checks until I receive your wire confirming the terms." In a reply letter from the plaintiffs to the defendant dated October 10, 1946, it was stated that "it is understood that the equipment we have purchased from you will be released to us when it is replaced by new equipment," and "You can deposit both of the checks which you have."
It appears that both parties learned, shortly after this correspondence, that the delivery of the new machinery to replace the machinery sold by the defendant to the plaintiffs would be delayed beyond the expectation of both parties, and this situation was discussed in further correspondence between the parties. On October 29, the defendant wrote the plaintiffs with reference to the delay which then seemed apparent, and made this statement: "If I can resell this equipment to some of the other prospects, do you want to drop the whole deal?" On November 1, 1946, the plaintiffs replied to that letter, and specifically to the suggestion that the whole deal be dropped, by saying "Of course, we do not want to back out of the deal that we have made. We will take our chances that when the equipment is ready for shipment we will be able to find a customer who will pay us a slight profit on the transaction."
We think it is clear from the evidence that the plaintiffs knew the property was used machinery and equipment, and was then in use at Leesburg, Florida, and could not be delivered immediately, and stipulated in the first instance in the order that it must be delivered within a reasonable time, not to exceed four weeks; and thereafter, the defendant made a counter proposition of sale stipulating as to delivery that said machinery was to be made available when replaced by new equipment; which counteroffer was accepted by the plaintiffs; and later on when the matter of delay beyond the contemplation of both parties was apparent the defendant suggested his willingness to "drop the whole deal," whereupon the plaintiffs reaffirmed the contract by expressly advising that they did not want to back out of the deal and would take their chances on finding a customer for the property when it was ready for shipment. Other letters between the parties not specifically referred to do not alter what seems to be the real facts of the case. Under these circumstances we *Page 593 do not think the question of a reasonable time in which to make delivery, which ordinarily is for the determination of the jury, was applicable to the case. The parties agreed that the machinery would be delivered when it was replaced by other machinery. While this date was uncertain, it was ascertainable. The delay in replacing the machinery does not appear to have been the fault of either the plaintiffs or the defendant. It appears from the stipulation and from the evidence that the machinery purchased was not replaced with new machinery until March 22, 1948, after which date the plaintiffs refused to accept delivery. Under the evidence the plaintiffs were not in position to rescind the contract of purchase when they undertook to do so. The defendant complied with the agreement in tendering the property as soon as it could have been tendered under the contract. The verdict for the defendant was demanded as a matter of law. The court did not, therefore, err in directing said verdict. A different conclusion is not required or authorized by the cases on which the plaintiffs rely. See Estes Lumber Co. v. Palmyra Yellow PineCo., 29 Ga. App. 15 (113 S.E. 821).
While it is never error to refuse to direct a verdict (PearlAssurance Co. Ltd. v. Nichols, 73 Ga. App. 452, 37 S.E.2d 227); "Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code, § 110-104. "It is not reversible error to direct a verdict if no other finding than that directed can legally be reached or sustained. Davis v. Kirkland, 1 Ga. App. 5 (58 S.E. 209)."Lumber Ins. Co. of New York v. Henderson Lumber Co., 16 Ga. App. 756 (86 S.E. 60).
2. The court did not err in excluding from the evidence the letter from the defendant to the plaintiffs dated September 25, 1946. Although this letter conveyed to the plaintiffs the hope that the new machinery would be procured in October, it was not a part of the contract finally made by the parties and was therefore immaterial. It illustrated the fact that the plaintiffs and the defendant hoped for and expected an early delivery of the new machinery, but that fact was abundantly shown by other letters which were introduced in evidence.
Judgment affirmed. Sutton, C. J., and Felton, J.,concur. *Page 594