Opinion
34155.
DECIDED SEPTEMBER 13, 1952.
Complaint; from DeKalb Civil Court — Judge Mitchell. May 6, 1952.
A. S. Grove, for plaintiff in error.
I. A. Blanch, contra.
1. The contract sued on is not too vague, indefinite, and lacking in mutuality to be enforceable, and the petition alleged a good cause of action for the instalments payable under the contract alleged to be due and unpaid.
2. The general and special demurrers were without merit, and the court did not err in overruling them.
DECIDED SEPTEMBER 13, 1952.
Ben F. Levis Incorporated sued Harry Sunshine, doing business as Sunshine Department Store, for damages allegedly arising out of a breach of contract. The petition alleged substantially: that the defendant signed an instrument, a copy of which is attached, marked Exhibit A and made a part of the petition; that the plaintiff has performed its part of the said agreement and is ready, willing, and able to perform the same; that the defendant failed and refused to make payment; that $936 is now due to date on the said contract, which sum the plaintiff duly demanded. Exhibit A was as follows: "This agreement made this 5th day of May, 1951, between Ben F. Levis, Inc. of the City of New York, State of New York and Sunshine Department Store of the City of Atlanta, State of Georgia, the said department store hereby employs Ben F. Levis, Inc., for 1 year from the 1st day of May, 1951, as resident buyer in the City of New York, State of New York for the said Sunshine Department Store of the City of Atlanta, State of Georgia and for such services agrees to pay Ben F. Levis, Inc. at the rate of $1200.00 per year (plus postage) beginning the 1st day of May, 1951, said sum to be paid in monthly installments of $100.00. Ben F. Levis, Inc. hereby accepts said employment and agrees to act as resident buyer in the City of New York, State of New York for said Sunshine Department Store of the City of Atlanta, State of Georgia, at the rate of $1200 per year (plus postage) beginning the 1st day of May, 1951, said sum to be paid by monthly installments as aforesaid. It is further agreed between the parties that the said Sunshine Department Store shall give notice in writing by registered letter to said Ben F. Levis, Inc. thirty (30) days before the expiration of this contract of intention not to renew it and in the event that such notice is not given then this contract shall automatically continue and be renewed and extended for a period of one year from the expiration of the original terms mentioned herein. This clause shall apply and attach to any and all renewals of this agreement." Also attached to the petition was a copy of a statement of the plaintiff to the defendant, which showed a charge of $104 for each month from May 1, 1951, to April 1, 1952, and showed a total balance of $1248. The defendant demurred generally and specially to the petition and moved to strike the petition and certain portions thereof. The court overruled the demurrers, and the defendant excepts.
1. (a) The terms of the contract between the plaintiff and defendant provided that the services contracted for should be paid for in monthly instalments. Under the contract the plaintiff had the right to demand and collect each instalment as it became due. In the event the defendant failed to pay an instalment when due, the plaintiff could maintain an action against the defendant for the collection of the instalment. Edison v. Dundee Woolen Mills, 20 Ga. App. 404, 410 (2) ( 93 S.E. 324) and citations; Franklin v. Ford, 13 Ga. App. 469 (3) ( 79 S.E. 366). And where, as here, the defendant has defaulted in the payment of several instalments, a suit for the several instalments due and unpaid at the institution of the action may be maintained. Martin v. McLain, 51 Ga. App. 336 (3) ( 180 S.E. 510). Contrary to the contention of the plaintiff in error, regardless of whether the contract in the instant case was entire or severable, the plaintiff could maintain an action for due and unpaid instalments before the expiration of the contract period. Code § 20-1401 provides: "If a contract be entire, but one suit can be maintained for a breach thereof; but if it be severable, or if the breaches occur at successive periods in an entire contract (as where money is to be paid by instalments), an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein." (Emphasis supplied.)
(b) The contention that the contract is too vague and indefinite and lacking in mutuality to be enforceable is without merit, as is the contention that the contract is unilateral. The law leans against the destruction of contracts on the ground of uncertainty. Leffler Co. v. Dickerson, 1 Ga. App. 63 (1) ( 57 S.E. 911); Verdery v. Withers, 30 Ga. App. 63, 70 ( 116 S.E. 894). The instant contract provides that for a stated consideration the plaintiff would act as "resident buyer" for the defendant, trading as Sunshine Department Store. We think that both parties to the contract understood it to mean that the plaintiff would act as the defendant's buyer for products used in his mercantile business. Mercantile terms in mercantile contracts will be given the meaning which merchants ordinarily give them. Williston on Contracts, Vol. 3, 1778, § 618. See also Anderson, Clayton Co. v. Mangham, 32 Ga. App. 152 ( 123 S.E. 159). The plaintiff in error also contends that the allegation, "That plaintiff has performed its part of the said agreement and is ready, willing and able to perform the same," construed most strongly against the plaintiff, only alleged that the plaintiff was ready, willing, and able to perform under the contract and not that he had performed under the contract. The contention is without merit. The only reasonable construction that can be put on such allegation is that the plaintiff has performed his part of the contract up to the time of the suit and is ready, willing, and able to perform under the contract for the remainder of the contract period.
3. The defendant specially demurred to paragraph 5 of the petition, as follows: "a. Because the said alleged sum of $936 shown in said paragraph is not itemized, nor is it shown of what said alleged item consists. b. Because said alleged item and sum of $936 shown in said paragraph is at variance with the unmarked and unidentified statement attached to plaintiff's petition in the alleged sum of $1248." This demurrer is without merit. The attached statement showed an itemized charge of $104 for each month from May 1, 1951, to April 1, 1952, with no credits shown, and a total balance of $1248 opposite the April 1, 1952, item. By a simple computation from the data appearing on the face of the petition and the attached statement, it is readily ascertainable that the plaintiff sued for nine instalments of $104 each from May 1, 1951, to the date of the suit, a total of $936, the amount prayed for. The only item not explained is the $4 a month postage charge, but there was no special demurrer on this ground.
The petition alleged a good cause of action, and the court did not err in overruling the general and special demurrers.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.