
    15811.
    Gate City Coffin Company v. Hall.
    Decided November 13, 1924.
    Action for .breach of contract; from Fulton superior court— Judge Ellis. June 10, 1924.
    Smith, Hammond & Smith, for plaintiff in error.
    
      JE. Smythe Gambrell, Underwood, Pomeroy & Haas, contra.
   Broyles, C. J.

1. Where goods are sold for cash to be paid on delivery, the prepayment of the purchase price is a condition precedent to the sale, and where the purchase price is not paid, the title remains in the vendor, notwithstanding possession of the goods by the buyer. Bergan v. Magnus, 98 Ga. 514 (1) (25 S. E. 570); Starnes v. Roberts, 128 Ga. 718 (58 S. E. 348); Bowen v. DeLoach, 13 Ga. App. 458 (1) (79 S. E. 371).

2. In such a case as above stated the contract is executory (Dilman v. Patterson, 2 Ga. App. 213 (1, 2), 58 S. E. 365), and upon a breach thereof by the buyer the seller can bring an action, under § 4131 of the Civil Code of 1910, to recover the difference between the contract price and the market price.

3. Under the above-stated rulings and the facts of the instant case, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.  