1. The cancellation of a contract by mutual consent is effective, there being sufficient consideration in the mutual promises and agreement of the parties.
2. Since the jury found that the contract was canceled in accordance with the charge of the court that should they so find they would consider the case no further, it is immaterial that error was committed in connection with proceedings subsequent thereto, whether on the introduction of evidence or the charge of the court. The jury by their verdict having found that the contract was canceled necessarily did not consider them phases of the case.
J. A. Riggins filed a petition in the Superior Court of Spalding County against Pomona Products Company, alleging: that it was indebted to him in the amount of $402.50 for 3500 budded Sullivan's Elberta peach trees ordered by the defendant and planted and budded especially for it under a parol agreement of May 5, 1947, which order was confirmed by a letter of June 6, 1947, as set out in the petition; that when said trees reached the agreed height and were ready for delivery in the fall of 1947, and had been duly inspected, as contemplated in the agreement, the plaintiff so notified the defendant; that the defendant refused to accept the said trees or any of them, and that the plaintiff then attempted to sell the trees in the open market but was unable to do so and elected to retain said trees and store them for the defendant. The defendant answered admitting that it had ordered the peach trees in question, but stating that the plaintiff never accepted or acknowledged said order in writing, and that in August, 1947, the plaintiff agreed with the defendant's agent to cancel said order. Paragraph 15 is as follows: "And for further plea and answer, defendant says that, on November 16, 1948, as a matter of compromise to this controversy, it wrote a letter to the attorney for the plaintiff and offered to take and pay for the trees at the contract price, if plaintiff was able to deliver them. But upon investigation and inspection it was found that the nursery was badly infected with nematode or root knot disease and were unfit for the purpose intended, and the sale of the same was prohibited by the rules and regulations of the Georgia Department of Entomology."
Upon the trial of the case evidence was introduced which would have authorized the jury to find facts substantially as follows: that the plaintiff was a duly licensed nurseryman; that in the spring of 1947 H. L. Cochran, as agent for the defendant, came to his nursery and asked whether he would procure and bud 3500 Sullivan's Elberta peach trees of 18 to 24 inches for that company to be delivered in the fall; that he agreed with this agent as to the price and accepted the order; that the defendant company later confirmed this order by letter; that the plaintiff procured, budded and grew the 3500 trees and had them ready for delivery in the fall; that in July, 1947, after the plaintiff had planted and budded his trees, H. L. Cochran and another employee of the defendant went to the plaintiff's home; that they told the plaintiff they had decided not to use the Sullivan's Elberta trees but preferred Fairs Beauty, and that the plaintiff told them he thought he could make the swap through a mutual friend. The two witnesses for the defendant then testified that they requested the plaintiff, if he was unable to make the exchange, to consider their original order canceled and that he said, "I will," whereas the plaintiff testified that he stated only that he would try to obtain the other variety but, if he was unable to do so, the original contract would have to remain in force, to which the defendant agreed. The jury was further authorized to find that the plaintiff was not able to exchange the trees; that in January, 1948, he tendered the trees to the defendant, which unconditionally refused the same; that in November, 1948, the defendant offered by letter to compromise the dispute by taking all available trees at the contract price; that the following day the defendant's agent went to the plaintiff's home and examined the trees; that he found them stunted and infected with root disease; that he returned with an employee of the State Department of Entomology who also examined the trees and pronounced them infected; that this employee testified that from his experience he believed the trees were so infested with nematodes as to indicate that they had suffered from this disease during their first year of growth, and that the defendant then refused to purchase the trees on the ground that they were worthless. The jury returned a verdict as follows: "We the jury find the contract canceled in favor of the defendant." To the judgment of the court in favor of the defendant the plaintiff filed his motion for a new trial on the general grounds, which was later amended by adding 14 special grounds, and the overruling of this motion is assigned as error.
731 (4). But a rescission, abandonment or cancellation of the contract by mutual consent is effective, there being sufficient consideration in the mutual promises and agreement of the parties. See Hardy v. Maddox, 72 Ga. App. 707 (34 S. E. 2d, 903), at page 711, and cases there cited. Counsel for the plaintiff contends that a contract cannot be canceled by mutual consent where there has been performance by one party. Assuming that this position was well taken, the plaintiff in this case had budded the trees and they were in the process of growing to the height contemplated by the contract at the time of the cancellation, but it cannot be said that he had completed his contract. The trees still had to grow to the height required and then be delivered. There was also consideration flowing to the plaintiff, it being the mutual promises and agreement of the parties which would permit the plaintiff to sell the trees to others at a higher price if the market for the trees was such as to make this course possible. The condition of the market for the trees was a matter open to investigation by the plaintiff before he agreed to the cancellation. If the jury believed the defendant's witnesses, as the verdict shows that it did, it was authorized to find the contract had been canceled by mutual consent. In consequence, these grounds of the amended motion are without merit.
2. The court charged the jury in part as follows: "The first issue is whether or not this contract has been canceled. You take up the first point of the question, has the contract been canceled. If you determine the contract was canceled and if the plaintiff agreed to the cancellation of that contract, then you would consider the case no further. In that event, the form of your verdict would be, 'We the jury find in favor of the defendant.' If you find the contract wasn't canceled, then you would go further . . ." The jury brought in a verdict as follows: "We the jury find the contract canceled in favor of the defendant." It is obvious from the form of the verdict that the jury took up the first issue, as instructed by the court, and decided it in favor of the defendant, thus terminating their deliberations.
The remaining grounds of the amended motion complain of the introduction of evidence relating to the condition of the trees at the time the defendant offered to compromise the dispute by purchasing all suitable trees on hand, on the charge of the court as to the defendant's contention that at this time they were not suitable, his charge on the subject of breach of contract, and his charge on the plaintiff's election, as the result of such alleged breach, to sue for the full contract price. Without touching on the merits of these assignments of error further than to say that the testimony was admissible under the affirmative defense of the defendant as set out in its pleadings, it is obvious that the alleged errors complained of, if any, related to matters necessarily not considered by the jury in reaching its decision in this case, and for this reason could not in any event have been harmful to the plaintiff. See Robinson v. Murray, 198 Ga. 690 (2) (32 S. E. 2d, 496). The defendant had the right under its pleadings to introduce evidence that at the time it offered to settle the dispute by purchasing the trees they were not merchantable, but this issue, and in fact all issues relating to a breach of contract, could not have been considered under the verdict finding that the contract had been canceled. These assignments of error are therefore without merit.
3. Two witnesses for the defendant testified that the contract was canceled by mutual consent. This testimony was contradicted by the plaintiff, but not impeached. Therefore, the jury was authorized by the evidence to find in favor of the cancellation of the contract, an issue of fact being presented.
The trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.