9981.

#### Georgia Creosoting Company *v.*McIntosh Land and Timber Company.

Jenkins, J.

1. If a seller of goods fails to deliver theta in the time specified in the contract of sale, and the purchaser thereafter urges delivery, and as an inducement therefor impliedly offers to waive his claim for damages on account of the delay in the performance of the contract, subsequent compliance by the seller with his acceptance of the terms of the proposal, within the time specified therein, or, if no time is specified therein, then within a reasonable time, by tendering the property called for by the contract, will ftirnish a valid consideration for the proposal, and operate to render it binding upon the purchaser. If only a portion of the property should be thus subsequently tendered by the seller as in part compliance with such proposal, the purchaser’s acceptance of the portion thus tendered would operate to-bind him under his waiver to the extent, of the tender and acceptance, even though the reasonable time covered by the extension might have in fact expired; but the waiver of damages by such acceptance of the- partial tender would be pro tanto only, and would not operate as a waiver of the purchaser’s claim for damages on the basis of the original breach, as to the portion of the goods remaining undelivered. Gude *v*. *Bailey Co., 4 Ga. App.*226, 230 (61 S. E. 135).

2. If such partial tender and acceptance be made at a time such as, the jury might find was subsequent to the expiration óf the reasonable' extension implied under the proposal as made by the purchaser, and the purchaser, at the time of such partial tender and acceptance, makes another and additional offer whereby he again and specifically proposes to waive all damages incurred by the seller’s delay, provided the remainder of the contract should be fully completed by a date named in th'e new proposal, the latter offer does not amount *to-*an. agreement binding upon the purchaser unless the seller complies with the condition thus imposed; and, upon the seller’s rejection- of. the new proposal at a time when his reasonable period of extension under .the former proposal might be taken to have already expired, his liability for" damages, on the basis of . the original breach, for his failure to deliver the -portion of the goods still outstanding under the order, becomes absolute *(Hardwood Lumber Co.*v. *Adam,*134 *Ga.*821 (6), 68 S. E. 725, 32 L. R. A. (N. S.) 192; Wiggin *v.*Marsh Lumber Co., 77 W. Va. 7, 87 S. E. 194); and the purchaser would have the right to withhold any payments actually due the seller under the preyious shipments, to the extent of his damage thus sustained.

3. There is, however,- in the record in this case nothing - that would authorize the seller to refuse to ship the remaining undelivered portion of the ' goods contracted for, on the ground that ,the purchaser. had failed- to make payment for any separate and previous shipment, tipon its delivery;- since the record discloses nothing to vary the general rule that where a contract provides for the sale ,of a specified commodity, to be shipped to the purchaser at a named price, shipment to be completed within a stated. period, the agreement constitutes an entire contract, although the subject-matter is divisible, and failure of *562the purchaser to pay for any separate shipment upon its delivery and prior to the delivery of the entire amount would not, as a matter of law, operate as a breach of the contract on his part, there being nothing in the record to show any such previous course of dealings between the parties, or the existence of any such custom of trade as might raise the implication that an intention different from the one just indicated was in the'minds of the parties at the time the contract was effected. *Central Georgia, Brick Co.*v. *Carolina Portland Cement Co.,*136 *Ga.*693 (71 S. E. 1048).

Decided April 16, 1919.

Complaint; from Glynn superior court—Judge Highsmith. June 1, 1918.

*Bennet, Twitty & Reese,*for plaintiff in error.

*A. D. Gale,*contra.

4. Under the rules stated above the court erred in directing a verdict for the plaintiff on the theory that, as there had been a mutual disregard of the terms of the contract pertaining to the time of delivery up to the date of last shipment, the failure of the purchaser to pay for the last partial delivery when made amounted to a breach of the contract on its part, such as would prevent it from- recovering damages from the plaintiff because of failure to comply with 'the terms of the contract relative to the portion of the goods not actually delivered or tendered.

*Judgment reversed.*

*Wade, C. J., and Luke, J., concur.*