Whitehead v. Cranford

210 Ga. 257 (1953)

78 S.E.2d 797

WHITEHEAD v. CRANFORD.

18392.

Supreme Court of Georgia.

Submitted October 14, 1953.

Decided November 10, 1953.

Rehearing Denied November 25, 1953.

Troutman, Sams, Schroder & Lockerman, J. L. Glover, for plaintiff in error.

Walter D. Sanders, contra.

*259 HEAD, Justice.

1. Whenever personal property shall be sold and delivered with the condition affixed to the sale that the title thereto is to remain in the seller until the purchase price is paid in full, such contract is a conditional sale. Code § 67-1401; Jowers v. Blandy, 58 Ga. 379; A. O. Blackmar Co. v. Wright Co., 62 Ga. App. 861 (10 S. E. 2d 117).

2. A contract may be absolute or conditional. In a conditional sale the covenants are dependent the one upon the other, and the breach of one is a release of the binding force of all dependent covenants. The classification of every contract must depend upon a rational interpretation of the intention of the parties. Code § 20-109.

3. The proviso in the contract, that "this sale is contingent upon the beer license held by Briarcliff Pharmacy being transferable to the grantee herein," is neither impossible, immoral nor illegal (Code § 20-111), but is a stipulation within the contractual rights of the parties, and when approved by them, all other covenants and agreements of the contract were thereupon dependent on the beer license "being transferable to the grantee," the plaintiff herein.

4. The act of 1935, which authorizes the sale of beer at retail, provides that no person may become a retail dealer in beer in any municipality without first procuring a license or permit from the municipality. In the granting or refusing of a license or permit, the municipality may exercise discretionary powers, since the sale of beer is declared to be a privilege and not a right. Ga. L. 1935, p. 80 (Code, Ann., § 58-718).

5. A rational interpretation of the intention of the parties (Code § 20-109) with reference to the proviso, "transferable to the grantee herein," could only mean that the grantee (plaintiff) must be approved as a licensee within the discretion granted by law to the municipal authorities. Whether or not some other person might be approved in the discretion of the municipal authorities as a transferee is not the contingency of *258 the proviso, which, by its terms, is limited to the grantee. It was error to sustain the general demurrer to the petition.

Judgment reversed. All the Justices concur, except Duckworth, C. J., not participating.