Greene v. Keener., 198 Ga. App. 565, 402 S.E.2d 284 (1991)
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Judgment reversed. Pope and Andrews, JJ., concur.
Summary
Judgment reversed. Pope and Andrews, JJ., concur.
Text
David F. Sandbach, Jr., for appellant.
In a bench trial, plaintiff Greene lost her suit to rescind the sale of an antique secretary, and to recover it. The Supreme Court transferred this appeal, as not being an equity case. 1983 Const. of Ga., Art. VI, Sec. VI, Par. 111(2).
Viewed in favor of the judgment, the evidence showed the following. Greene placed on sale several pieces of antique furniture from her mother's estate in Valdosta. Because she lived in Atlanta she authorized her cousin to show the furniture. Keener inquired about the price of the secretary and was informed that it would be $4,200. Greene intended the price to be $6,000 and was unsure whether she wanted to sell it, but in conversation with Keener she agreed to sell it for $4,200. Keener said he was very interested and "the only thing I wanted to do was to be sure it blended in with the rest of our furniture." After some discussion it was agreed that Keener could take the secretary home and see if it matched his other furniture.
The night after Keener had the secretary taken to his home, Greene called and informed him that she no longer wanted to sell the secretary and asked that he return it. Keener said "hold on a minute," and went to speak with his wife. He inquired if she liked the piece and she responded yes. At the trial there was a dispute as to what Keener then told Greene. Taking the version favorable to the prevailing party, Keener informed her that "she liked the secretary" and "would like to keep" it.
The trial court determined that there was a valid binding contract for the sale. On appeal Greene contends that there was a mutual rescission of the contract. However, it was not necessary that the parties mutually rescind the contract because it was undisputed that Greene revoked her offer before there was an acceptance by Keener.
"An offer to contract may be withdrawn by the offeror before its acceptance by the offeree." Remington Cash &c. Co. v. Orr Drug Co.,
" '[I]f both parties meet, one prepared to accept and the other to retract, whichever speaks first will have the law with him; and this question is one of fact to be decided by the jury.' " Helmer, supra at 870 quoting from 17 CJS 708, Contracts, 50 (a). Both parties testified that Greene told Keener she did not want to sell and it was only afterwards that Keener discussed the issue with his wife and then relayed her assent indicating a desire to keep the secretary. As a matter of law, communication of the withdrawal of the offer occurred prior to acceptance.
Applying OCGA
William P. Langdale, Jr., for appellee.
1991
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