Ansley v. Hightower

• Decision Date: 14 July 1904
• Citation: Ansley v. Hightower, 120 Ga. 719, 48 S.E. 197 (Ga. 1904)
• Court: Georgia Supreme Court
• Parties: ANSLEY v. HIGHTOWER.

48 S.E. 197

120 Ga. 719

ANSLEY

v.HIGHTOWER.

Supreme Court of Georgia.

July 14, 1904.

PLEADING—CONTRACT — STATUTE OF FRAUDS— TENDER—REFUSAL.

1. The allegations in the petition set forth a contract based upon a sufficient consideration and a breach thereof by the defendant.

2. The petition also showed that the contract was with the defendant individually, and not with a partnership of which the defendant was a member.

3. Where a petition declares upon a contract it is not necessary, even though such contract is within the statute of frauds, to allege that it was in writing. Upon demurrer it will be presumed that the contract was in writing, unless the pleadings show the contrary. Walker v. Edmundson. 36 S. E. 800, 111 Ga. 455: Taliaferro v. Smiley, 37 S. E. 106, 112 Ga. 62.

4. A tender of money is excused where, before the expiration of the time therefor, he party to whom it is to be made makes declarations equivalent to a refusal to accept the tender if made. Biggers v. Pace, 5 Ga. 171; Baynes v. Bernhard, 12 Ga. 150; Hunt v. Formby's Guardian, 43 Ga. 79; 25 A. & E. Enc. L. 904.

(Syllabus by the Court.)

Error from Superior Court, Thomas County; R. G. Mitchell, Judge.

Action between F. J. Ansley and J. W. Hightower. There was judgment for the latter, and the former brings error. Reversed.

S. A. Roddenberry, R. L. Shipp, and A R. Kline, for plaintiff in error.

Fondreu Mitchell, J. H. Merrill, Dessau, Harris & Harris, and Pope S. Hill, for defendant in error.

SIMMONS, C. J. Judgment reversed. All the Justices concurring.