DECIDED JANUARY 31, 1962. REHEARING DENIED FEBRUARY 16, 1962 AND MARCH 5, 1962.
Action on account, etc. Fulton Civil Court. Before Judge Parker.
Carpenter, Karp Matthews, A. Tate Conyers, for plaintiff in error.
A. Mims Wilkinson, Jr., contra.
The court did not err in denying the motion for a new trial.
DECIDED JANUARY 31, 1962 — REHEARING DENIED FEBRUARY 16, 1962 AND MARCH 5, 1962.
National Cylinder Gas Company, hereinafter referred to as the plaintiff, filed suit against American Iron Metal Company, hereinafter referred to as the defendant, upon an account alleged to have originated under a written contract between the parties. The contract provided that the plaintiff furnish to the defendant cylinders of oxygen and acetylene gas over a period of five years. The contract provided that the cylinders would be returned to the plaintiff within thirty days after the defendant received them, and the defendant would pay the plaintiff 3¢ per cylinder for each day the cylinders should remain in its possession beyond the 30-day period, which the parties called a demurrage charge.
The defendant filed an answer denying the allegations of the petition, and, by further plea, alleged that the defendant did not execute the purported contract, and further alleged that it did not ratify the alleged contract.
The defendant also averred in its plea that "even if the contract sued upon by plaintiff was ever entered into between the parties, the parties mutually departed from the terms of Paragraph 4 of said contract [relative to charges for demurrage] and plaintiff never contended that defendant owed such demurrage from the time the parties started doing business . . . until the month of December, 1958, and that when the plaintiff in December, 1958, attempted to insist upon the payment of demurrage, the parties ceased doing business."
The evidence was in sharp conflict. Witnesses produced by the plaintiff testified that the president of the defendant corporation executed the written contract on behalf of the defendant. The agent of the plaintiff corporation testified that a demurrage was charged to the defendant on all cylinders kept by it over 30 days. However, when empty cylinders were returned to the plaintiff prior to the expiration of the 30 days, the defendant was given credit for the "unused balance of the 30 days to offset the charges for other cylinders kept over 30 days"; that the defendant's volume of business was high during the first few months of business between the parties and that the credits exceeded the charges for a period of several months; that on the first charge for demurrage billed to the defendant, the president of the defendant corporation called him, and they agreed to deduct the demurrage charge of $1,248.88, accumulated through April 15, 1958, upon the condition that from that point on the defendant would be responsible for the normal charge of demurrage.
The president of the defendant corporation testified that he did not execute the written contract, and that the signature on the purported contract was not his. He also testified that the plaintiff corporation offered to furnish the cylinders of gas to the defendant upon the same basis that the defendant had previously purchased cylinders of gas from a third party; that the third party never charged for demurrage when it furnished cylinders of gas to the defendant; that he accepted the plaintiff's offer on behalf of the corporation, but no written agreement was executed; that the parties did business under an oral contract; that no charges for demurrage were billed to the defendant for several months; that, when the charge for demurrage was first billed to the defendant corporation, he "hit the ceiling" and called the agent of the plaintiff corporation; that the agent of the plaintiff corporation agreed there was to be no charge for demurrage, and the first charge for demurrage was removed from the defendant's bill.
A bookkeeper for the defendant corporation testified that he signed the name of the president of the defendant corporation to the purported contract at the insistence and request of the agent of the plaintiff corporation without the authorization or knowledge of the president of the defendant corporation. The said agent represented that: "It's just a matter of record. I have to have a record for my company to show I'm doing business with you." This was denied by the agent of the plaintiff.
The jury found for the plaintiff in the principal amount prayed for in the petition. The defendant filed a motion for a new trial, and later, by amendment, added one special ground. To the denial of its motion the defendant excepts.
The defendant has abandoned the general grounds of its motion for a new trial. Therefore, the sole question to be determined is whether the single special ground of the motion is meritorious.
The defendant contends that the trial court erred in failing to charge, in absence of a written request, the following: "Gentlemen of the jury, I charge you that under the law where parties enter into a contract where the parties by agreement or by conduct and acquiescence depart from the terms of that contract and pay or receive benefits under such departure, with knowledge of such departure that a new agreement is made in lieu of the original agreement and neither party can recover for any breach of or departure from the contract as originally entered into by them."
The defendant's main plea was that it had not made or ratified the alleged written contract, but that all the business it did with the plaintiff was under an oral agreement under which it was understood between the parties that it would not be liable for demurrage. The defendant did not plead an abrogation or rescission of the alleged written contract. The contents of what the defendant contends the court should have charged the jury without a request shows that the defendant was relying upon, as its secondary defense, the law embodied in Code § 20-116.
Even if we assume that the principle of departure from any of the terms of the contract is applicable, it is clear that, under the evidence of this case, all the elements of departure embodied in Code § 20-116 would be involved and not just a portion of Code § 20-116.
A special ground of a motion for a new trial which assigns as error the failure of the trial court to charge an applicable principle of law raised by the pleadings and evidence as an issue in the case must cover every essential element of the principle of law which the movant contends should have been charged before it is meritorious. Lovett v. Sandersville R. Co., 72 Ga. App. 692 ( 34 S.E.2d 664); Tietjen v. Dobson, 170 Ga. 123 ( 152 S.E. 222, 69 ALR 1408).
In Lovett v. Sandersville R. Co., 72 Ga. App. 692 (3), 699, supra, the court, in ruling on an assignment of error because the court failed to charge a certain principle of law without a written request, said: "The assignment of error the ground of which is that the court erred in failing to charge the jury without request on the doctrine of `last clear chance' is without merit, for the reason that the assignment of error incorrectly defines the doctrine." (Emphasis added). The court stated in the decision wherein the assignment of error incorrectly defined the principle of law applicable to that case.
The Supreme Court in Tietjen v. Dobson, 170 Ga. 123, supra, in ruling upon an assignment of error on failure of the court to charge a principle of law without a written request, held: "The eighth ground of the motion complains of a failure of the court to charge without request. The language employed in this ground does not accurately state a correct principle of law applicable to the case, and there was no error in overruling this ground."
In this case a charge in the language which movant contends the trial court should have charged would have been erroneous. It would have been tantamount to instructing the jury that if they should find the parties departed from the terms of the contract, there can be no recovery for any breach of the contract. This is not the import of Code § 20-116, which provides: "Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement."
Thus, when parties to a contract by a course of conduct in carrying out the contract depart from the strict terms thereof, one party cannot hold the other party to the strict terms of the agreement until reasonable notice of such intent has been given. Prothro v. Walker, 202 Ga. 71 ( 42 S.E.2d 114).
Consequently, a departure differs from a novation or abrogation of the contract, in that, under a novation or abrogation, there can be no return to the original terms of the contract. See Hennessy v. Woodruff, 210 Ga. 742 (1) ( 82 S.E.2d 859).
It is clear that, "where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. . ." Code § 20-116. We think it is equally clear that, in the event of such departure, one of the parties to the contract may, upon giving reasonable notice to the other of an intention to return to and pursue the letter of the agreement, insist upon any rights accruing to him under the original agreement after such notice has been given.
If we assume there was sufficient evidence to authorize a charge upon the principles of departure under Code § 20-116, the evidence was such as would have required a charge upon all the principles of law embodied in Code § 20-116. In the instant case, movant's special ground, which sets forth the language movant contends the judge should have charged, omits the provision of the statute relative to notice of intention to return to and rely upon the letter of the contract. Whereas, if the question of departure was involved, the question of notice to return to and rely on the letter of the contract was also involved. The ground is not meritorious. Lovett v. Sandersville R. Co., 72 Ga. App. 692, supra; Tietjen v. Dobson, 170 Ga. 123 (8), supra.
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.