Borum v. Swift & Co

• Citation: 125 Ga. 198,53 S.E. 608
• Parties: BORUM. v. SWIFT & CO.
• Decision Date: 28 March 1906
• Court: Georgia Supreme Court

53 S.E. 608

(125 Ga. 198)

BORUM.

v.SWIFT & CO.

Supreme Court of Georgia.

March 28, 1906.

Frauds, Statute of—Sale—Contract—Ambiguity.

Where, on the trial of an action for the breach of a written agreement for the sal" and delivery of a given number of pounds of " of the value, at the agreed price, of more than $50, the evidence showed that the term "ribs" is ambiguous, even to dealers in the general class of goods to which the alleged contract referred—there being several distinct kinds of "ribs" known to the trade—and that the plaintiff understood, from a parol agreement with the defendant, that the "ribs" referred to in the writing were of a particular kind and of a given average weight, the writing did not suffi ciently identify its subject-matter nor contain the entire agreement, as required by the statute of frauds, and therefore the plaintiff could not recover.

[Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 237.]

(Syllabus by the Court.)

Error from City Court of Americus; C. R. Crisp, Judge.

Action by D. M. Borum against Swift & Co. Judgment for defendant, and both parties bring error. Affirmed on main bill of exceptions, and cross-bill dismissed.

This was an action by D. M. Borum against Swift & Co. for the breach of an alleged contract for the sale and delivery of meat. The petition made the following allegations: On December 27, 1902, Swift & Co. sent a telegram to Borum, which was as follows: "Sorry cannot confirm sale one hundred fifty thousand pounds ribs eight seven-eighths c. a. f. best can do 8.95 c. a. f., January delivery ten points covering charge one half cent margin after January immediate acceptance wire." Borum immediately accepted this offer by telephone. He subsequently ordered Swift & Company to ship the meat, in accordance with the contract, in January, 1903, which Swift & Co. declined to do. The market price of the meat, at the time and place of delivery, was 9.7 cents per pound, making a difference between the market value and the contract price of $1,100, for which the plaintiff sought to recover. The defendant filed certain demurrers, which were overruled, and it excepted pendente lite. The defendant, among other things, pleaded the statute of frauds. When the case came on for trial, it was, by agreement, submitted to the trial judge for determination, without the intervention of a jury. The plaintiff introduced in evidence the telegram set out in his declaration, and testified that he accepted the offer therein made, over the telephone. He also testified as to the meaning of the telegram, according to mercantile custom and usage. He further testified, that he was a dealer in meat and had been engaged in that business about 20 years; that there are different kinds of ribs known to the trade. "I call smoked ribs, smoked bacon. There are bacon ribbed sides and bacon clear sides, bacon under clears, etc. There is only one kind of dry salt ribs. It is owing to the cut that gives it a different meaning. There is one known as hard ribs, all the backbone is on one side of the side; rough ribs are the backbone split open right down the middle, half the backbone on one side and half on the other, and in short ribs it is the ribs with the side on it, without either part of the backbone. What I was dealing with him [the agent of Swift Company] was for the dry salt ribs, which was the backbone split open. It was not dry hard salt ribs that I was dealing for, but dry salt rough ribs. I understood that I had bought from him dry rough salt ribs, meaning salt meat. Of course.

It didn't come out of a cow. It was hog ribs, dry salt hog ribs, 40 to 45 pounds. I was not buying beef ribs; hog ribs, but not cured. * * * The weight was understood, an average of 40 to 45 pounds. I told him over the telephone what sort of meat, dry salt ribs with split backbone. I told him that, and every time on both deals. I didn't want anything else. That was in reply to the telegram, both of them." He further testified that he ordered 75, 000 pounds shipped on January 23, 1903, that Swift & Co. refused to make the shipment, and that the market value of dry salt rough ribs at the time and place of delivery was 9.7 cents per pound. The plaintiff also introduced in evidence the interrogatories of an agent of Swift & Company, sued out by the defendant, wherein the witness testified that he had general supervision over the provision branch houses of Swift & Company in December, 1902, and that on December 27, 1902, he "booked" D. M. Borum, on the order of Purcival, another agent of Swift & Co., and the one who sent the telegram to Borum, "150, 000 pounds dry salt hard short ribs at $8.95." The defendant introduced no evidence. The court rendered a judgment in favor of the defendant, to which the plaintiff excepted. The defendant filed a cross-bill of exceptions, in which it assigned error upon the exceptions pendente lite to the overruling of its demurrers.

Hardeman & Jones, for plaintiff in error.

Shipp & Sheppard, for defendant in error.

FISH, C. J. (after stating the facts). The agreement for the breach of which this suit was brought was for the sale of merchandise of the value of more than $50; and, under the statute of frauds, to be enforceable, it had to be in writing. Civ. Code 1895, § 2693 (7). As no provision is made for oral evidence as to part of the terms, omitted from the writing, it must, in general, set forth with sufficient certainty the essentials of the agreement. Of course, a subject-matter is...