The purchaser of certain peaches brought suit against the seller, under the contract set out in the statement of facts, to recover the balance of the $1,000 represented by the certi- ■ fied check, after deducting the purchase-price of the peaches received. The court directed a verdict for the defendant, and the plaintiff excepted.
1. Hnder the contract, the certified cheek for $1,000 was placed with the seller apparently to guarantee payment for the peaches purchased, or to be used in paying for the last of those delivered. They were to be paid for when accepted by the agent of the purchaser at Rome, and loaded in cars at that place, and the bill of lading delivered to the purchaser. The certified check was to be returned to the purchaser when all of the purchase-price was paid, provided that it might be used toward paying for the last cars de*612livered. There is not a word in the contract indicating that such check was put up as a forfeit or as liquidated damages for a breach of contract. The seller was given no authority to cash the check, unless for the purpose of paying for the last cars of peaches agreed to be shipped. The contract to return the check negatived any right of the holder to cash it for other purposes, and so render himself unable to return it. There is no hint in the contract that the parties intended that the seller should cash the check at once, have the use of the $1,000 represented by it during the whole season, and require the purchaser to pay for the peaches as each car was delivered, and thus have in his hands, and subject to his use, both the $1,000 and the price of the peaches. When the seller, on the same day that he received this check (or draft, as it is also called), and before delivering'any peaches, cashed it (as was admitted), he violated the contract. It was argued in the brief of counsel for defendant in error that the purchaser waived this, because such purchaser “paid the draft.” The evidence did not disclose that the check or draft was drawn on the purchaser. If it was a check, it must have been drawn on a bank. Besides, it was a “ certified ” check or draft, and there is nothing in the record to show that the purchaser could have stopped payment.
2. Four days after delivering the first car-load of peaches, the seller delivered to the buyer, through its agent at Borne, a second, which the agent inspected and accepted. After this delivery, the seller’s agent learned that the draft given by the buyer’s agent on his principal for the price of the first car-load 'had not been paid; and thereupon the seller diverted the second car-load, which was in transit, sent it to Ohio, had it sold, and charged to the buyer the difference between the agreed price and what was received under the sale. What right the seller liad to do this is not apparent. The contract provided for delivery of the peaches “ f. o. b.” Borne, Ga.,” upon approval and acceptance by the buyer’s agent there, and delivery to the purchaser of the bill of lading. The second car was inspected, accepted, and delivered. While the shipper may have a right of stoppage in transitu, when the vendee becomes insolvent before he obtains actual possession (Civil Code, 1910, § 2739), we know of no law which authorized the seller to take the car-load of peaches away from the purchaser, after such a delivery, because the purchaser had not paid the draft for the first car-load, and *613deal with the second car-load as if refused. There was no evidence that the purchaser had then become insolvent. The seller had $1,000 of the purchaser’s money in his hands. This was more than the price of both car-loads of peaches. He was in no danger whatever of loss on those two cars. He could not at the game time break the contract and insist on its performance by the other party.
There was some evidence, not in entire accord, as to whether the agent of the seller actually tendered or offered other peaches to the agent of the purchaser, or whether he only said he could get up eight car-loads in addition to the first two, by getting his neighbors to join with him; and also as to whether such peaches would have been of the quality called for by the contract. But aside from this, when the seller cashed the cheek, and, after delivering a second car-load of peaches to the defendant at Borne, took it away by diverting it and selling it elsewhere because a draft for the first carload had not been paid, the buyer was not compelled to receive further car-loads. The purchaser was entitled to have restored to it the $1,000, after deducting the amount due for the car-load of peaches which it received and failed to pay for. And the purchaser having become bankrupt pending the case, the trustee in bankruptcy, who was made a party, could recover.
3. Some parts of the defendant’s answer were demurrable; but inasmuch as the same grounds of demurrer covered some allegations which were good and some which were bad, and as the ruling made above deals with the merits of the defenses, it is unnecessary to discuss the grounds of demurrer in detail. ■
4. Proof of market price in certain markets necessarily involves a hearsay element, and is not subject to the same strictness of rule as proof of a physical fact or occurrence. The fourth headnote requires no elaboration. Central Railroad Co. v. Skellie, 86 Ga. 686 (4), 692 (12 S. E. 1017); Armour & Co. v. Ross & Barfield, 110 Ga. 403, 412 (35 S. E. 787).
5. The depositions of a witness were taken before a commissioner under the Civil Code (1910), §§ 5910 et seq. Before the commissioner certain objections to parts of the testimony were made and noted. On the trial of the case in the superior court, other objections were raised to the testimony, on the ground that it was hearsay and secondary in character, and stated the conclusions of the witness. The court held that such objections should have been *614made at the time when the testimony was taken, and refused to entertain them when the depositions were read on the trial. This was error. The Civil Code (1910), § 5913, declares that all motions or applications to postpone or adjourn the proceedings, “and all objections to the witnesses or proceedings, shall be made to the commissioner, and, if in writing, filed with the return, and, if not in writing, noted in and become part of the return, with the ruling of the commissioner thereon, and the answer of the witnesses, whether the objection be sustained or not.” It will be observed that this, section requires applications for postponement or adjournment, and “ all objections to the witnesses or proceedings,” to be made to the commissioner. Such objections %re to be noted and returned with the answers of the witnesses, whether the objection be sustained or not. The language used indicates rather objections to witnesses and the form of procedure, than substantial objections to the competency or relevancy of certain parts of the evidence. We do not think that it was the intention of the legislature to require the admission of secondary or hearsay evidence where no objection thereto was made before the commissioner. See, in this connection, Georgia Ry. & El. Co. v. Bailey, 9 Ga. App. 106 (70 S. E. 608). This construction harmonizes the practice with that where the evidence is taken by interrogatories, though of course the two methods of obtaining testimony are not identical. No doubt good reasons might be suggested why, in taking depositions, where both parties have the right to be present, to make objections, and to examine the witnesses, objections ought to be noted, so that the adverse party might conduct his examination accordingly. But we can not hold that the legislature has required that all objections to evidence on the ground of being secondary or irrelevant or hearsay should then be made, under penalty of waiving the right to urge such objections on the trial. As the rulings of the presiding judge in regard to the objections made to certain evidence appear to have been based on the ground that they could not be made before him because not made before the commissioner, and not upon the merits of the objections, we deal with the question in the same manner.
Judgment reversed.
All the Justices concur, except Hill, J., not presiding.