
    10185.
    WILLARD BAG AND MANUFACTURING COMPANY v. EMPIRE STATE GUANO COMPANY.
    Where in a contract for the sale and purchase of goods there is no agreement as to the identity of the thing sold, an action for breach of the contract by refusal to accept the goods tendered is not maintainable. Identification of the thing sold is essential to a contract of sale.
    Decided June 27, 1919.
    Complaint; from city court of Americus—Judge Harper. October 7, 1918.
    
      W. A. Dodson, for plaintiff.
    
      Shipp & Sheppard, for defendant.
   Stephens, J.

The Willard Bag and Manufacturing Company brought suit in the city court of Americus against the Empire State Guano Company, alleging that they entered into a written contract whereby the plaintiff sold to the defendant thirty thousand bags at the price of $78 per thousand. The contract was attached to the petition and contained a condition,—“Printing one side in black, or if red 50^ per M. more.” It is not alleged in the petition whether, the defendant ordered red or black printed bags. On the face of the contract it is shown that the red bags were higher in price. It does' not appear that an agreement had been reached between the parties as to this particular feature of the contract. No identification of the thing s'old is alleged, and as that is an essential element for the recovery for a breach of a contract of sale, the trial judge did not err in sustaining a demurrer to the petition, on the ground that it did not set out a cause of action.

Judgment affirmed.

Broyles,-P. J., and Bloodiuorth, J., concur.  