
    317.
    CABLE COMPANY v. HANCOCK.
    1. If a traveling salesman, who has no authority to close a sale, takes from a prospective purchaser a written contract agreeing to buy an article on named terms and conditions, but by stipulations in the writing the contract is subject to the approval of the agent’s principal, the writing amounts to a mere offer, and is unilateral, until the approval contemplated has been duly made.
    2. In such a ease, if the contract relates to “goods, wares, or merchandise to the amount of $50 or more,” and is therefore within the purview of the statute of frauds, the approval contemplated must be in writing before the contract becomes mutual.
    3. In such a ease the offer may be withdrawn at any time before the con-trait has become mutual.
    Complaint, from city court of Athens — Judge Cobb. June 29, 1906.
    Argued May 6,
    Decided May 24, 1907.
    The plaintiff’s traveling salesman induced the defendant to buy a piano, but the salesman did not have the authority to make a binding contract of sale. He took, however, a written instrument, signed by the defendant, reciting that the plaintiff had agreed to sell him a described piano for a given sum, to be paid at named dates in the future; the condition being annexed that the title should remain in the seller until paid for. It was expressly recited, however, that the contract was subject to the approval of the plaintiff The piano was already in the defendant’s custody, having been previously left with him on trial. The salesman carried the contract at once to the plaintiff’s office, and turned it over to the manager in charge, who stated that it was satisfactory; that the company would accept it. The contract was then delivered to the bookkeeper, who entered it on the books. Afterwards, on the same day, the defendant by telephone told the plaintiff’s manager, at its office, that he had decided to cancel the order. The manager replied that he had already placed the contract on the books, and that he could not accept a cancellation. No written approval or acceptance of the contract was shown. The defendant tendered back.the piano, refusing to recognize the contract. The plaintiff sued on the contract. The piano was worth more than $50. The trial judge directed a verdict for the defendant, and the plaintiff excepted.
    
      Thomas F. Green, John J. Strickland, for plaintiff.
    
      Erwin & Erwin, for defendant.
   Powell, J.

(After stating the foregoing facts.) The usual and implicit power of a traveling salesman is merely to take orders, offers to buy, and not to make completed contracts of sale. Such was the fact in this case. Even in the absence of a condition in the written instrument itself requiring approval or acceptance by the principal, the law would have implied such a condition in the transaction. The writing (although in form, save only for the clause requiring approval, a binding contract) needed something to make it complete, viz., the acceptance of its terms by the opposite party; for, until the opposite party agreed to sell on the terms in the writing mentioned, the promisor’s agreement to buy _ and to pay was without consideration. Until the owners of the piano made a valid promise to sell, the consideration contemplated for the promise to buy and to pay was unilateral, and amounted only to a mere offer. This principle is now so well established by a large volume of authority as not to require specific citations.

The price of the piano was more than $50, and therefore the transaction was within the purview of the statute of frauds, and no oral approval or acceptance of the contract by the seller would render it binding on him. Until the seller became bound to the contract by a' writing, or by some act which would take the transaction out of the statute of frauds, the buyer could not have field him to its terms; and it therefore was lacking in the essential element of mutuality. Sivell v. Hogan, 119 Ga. 171, 46 S. E. 67. Delivery of the piano under the contract, and acceptance thereof by the buyer, would have been sufficient to make the contract complete. The buyer’s custody of the piano under the circumstances stated, however, did not have this effect. Compare Loyd v. Wight, 20 Ga. 574, 65 Am. Dec. 636 s. c. 25 Ga. 215; Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 42 S. E. 366.

'Until the contract became' mutual, the buyer had the right to withdraw -his assent. Therefore he had the right to withdraw it at any time before the seller entered his written approval. He exercised this right, and the verdict directed in his favor was therefore demanded. See Sivell v. Hogan, 119 Ga. 173, 46 S. E. 67; Atlanta Buggy Co. v. Hess Spring Co., 124 Ga. 338, 52 S. E. 613, 4 L. R. A. (N. S.) 431.

Judgment affirmed.  