1. An order taken by a salesman from a customer for articles of building material, containing the stipulations: "Notify when stock available," and, "All orders taken subject to prior sale of stock and written acceptance by the company, signed by an officer of the company," was, until the stock became available, and the order accepted as provided, or fulfilled by the party to whom addressed, merely an offer by the customer to purchase the articles, and was not a contract binding upon the vendor. Cable Piano Co. v. Hancock, 2 Ga. App. 73 (58 S.E. 319).
2. The defense and counterclaim were predicated entirely upon an alleged breach of an alleged written contract (the order described above), and evidence tending to establish a parol contract and a breach thereof was not germane to the issue involved so as to present questions for the jury.
3. The evidence showed without conflict that the purchaser received the merchandise upon which the action was founded, and that no payment or tender had been made to the vendor. A verdict for the plaintiff was demanded, and the superior court on appeal did not err in directing the verdict, and in overruling the motion for new trial.
Judgment affirmed. Sutton, P. J., and Felton, J.,concur.
DECIDED JUNE 9, 1944. *Page 293