Syllabus by the Court.
The
statute of frauds does not require that the contracts with
which it deals shall be created in writing, but requires only
that there shall be written evidence signed by the party to
be charged therewith showing that the contract was made.
(a) Any
signed writing, or series of writings internally connected
one with another, executed contemporaneously with or
subsequent to the contract, intelligible without parol and
showing or admitting an agreement coextensive with the
stipulations of the alleged contract, is sufficient to take
the promise out of the statute as against the party so
signing.
(b) A
letter signed by the party to be charged is sufficient to
take the agreement out of the statute if it admits the
existence of the agreement, though in the letter the writer
seeks to repudiate the contract on the ground that it was not
made in writing.
[Ed
Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§
192-208; Dec. Dig. § 103. [*]]
"Although
it is the duty of the trial judge to construe a written
contract, still if, instead of doing so, he submits it to the
jury for construction, the judgment will not be reversed
therefor, where it appears that the proper construction of
such contract would have been adverse to the contention of
the complaining party."
[Ed
Note.-For other cases, see Appeal and Error, Cent. Dig. §§
4215, 4216; Dec. Dig. § 1062. [*]]
Testimony
admissible under one theory of the case as presented by the
pleadings and the proof is not to be rejected because under
another theory likewise raised it would not be admissible.
[Ed
Note.-For other cases, see Trial, Dec. Dig. § 48
[*]]
Error
which necessarily did not prejudice the complaining party
will not work a reversal. If the verdict is more favorable to
the complaining party than the evidence most liberally
considered in his behalf authorizes, he cannot successfully
complain of inaccuracies in the charge.
[Ed.
Note.-For other cases, see Appeal and Error, Cent. Dig. §§
4052-4062; Dec. Dig. § 1033. [*]]
Error
from City Court of Atlanta; A. E. Calhoun, Judge.
Action
by the Capital City Brick Company against the Atlanta Ice & Coal Company. Judgment for defendant, and plaintiff brings
error. Affirmed.
Evidence
admissible under one theory of the case as presented by the
pleadings and proof is not to be rejected because under
another theory likewise presented it would not be admissible.
The
brick company sued the ice company on an account for the
purchase price of about 38,000 bricks at $6 per 1,000. The
defendant admitted getting the bricks, but set up two
defenses: First, that the bricks were not worth $6 per 1,000,
and that they were bought
as "all hard brick," and apparently were of that
quality, but that after delivery it was discovered that they
were very soft and inferior and were not worth over $2 per
1,000; also, that the defendant had bought from the plaintiff
500,000 hard bricks at the price of $6 per 1,000, that the
plaintiff had failed to deliver them so that the defendant
was under the necessity of buying them at the advanced market
price of $8 per 1,000, and for the $2 difference a set-off
was asked. The jury returned a verdict in favor of the
defendant against the plaintiff for $124.49 and interest. The
case comes to this court upon the overruling of a motion for
a new trial filed by the plaintiff.
To take
the alleged contract as to the 500,000 bricks out of the
statute of frauds, the defendant tendered the following
correspondence:
A
letter from the president of the ice company to the brick
company, as follows: "I beg to confirm my telephone
conversation with you this date whereby we have purchased
from you 500,000 all hard brick at $6 per thousand and
delivered f. o. b. cars, Georgia Railroad yards, this
city." A letter from the president of the brick company
referring to and replying to this letter, saying among other
things: "Since our conversation over the phone, I had
occasion to inquire how our stock of brick were, and the
superintendent informed me that it would be impossible for us
to handle more than 200 M brick of your 500 M order, and have
booked it for that amount. We wish that we could handle the
whole order; but it is impossible to make brick during the
months of January and February, and we only have a half of a
million brick on hand, with the orders on our books and
having to take care of our regular customers, we find it
impossible to handle more of your order than as stated above.
*** If satisfactory to you, kindly confirm order for 200,000
hard brick at $6.00 per M. f. o. b. cars Atlanta." A
letter from the president of the ice company: "Your
letter is a great surprise to me since I definitely traded
with you over the phone for 500,000 brick. I have notified
other bidders that the contract was placed, and I am now in
no position to relieve you from any portion of the order.
Having placed this order with Mr. Greenfield, as president of
the company, which I am sure you will not deny, I cannot
release you from your obligation to deliver the brick. Please
arrange to begin loading the brick next week and confirm
contract made by phone." A letter from the brick
company: "In regard to our filling your order for
500,000 brick, nothing would give us more pleasure than to
fill the whole amount were it possible; but as we cannot make
the weather, and as clay and negro labor will not adhere to
our wishes, it is impossible for any brickyard that works
free labor to accomplish anything in either cold or wet
weather. However, if the climatic conditions are such that we
can run and make any headway we would be foolish not to be
willing to fill your order, as we would have a fair profit in
same and that is what we are in the business for. If you can
wait till spring for us to fill a part of the order, it will
give us great pleasure to fill the whole contract. Trusting
that you understand our position (not having sufficient brick
on hand and not being able to make them before spring) and
that we will be able to serve you, we beg to remain etc. P.
S. If you wish us to deliver 200 M of the order kindly advise
us of same."
A
letter from the ice company: "Referring to your favor of
even date, it occurs to me that since we made a distinct
trade with your president by phone (which cannot be denied)
for the 500,000 brick, and notified other bidders that the
order had been placed, you cannot now legally or morally take
the position that owing to the information received after the
trade was made as to your stock on hand, and your lack of
facilities, attempt to arbitrarily reduce the order to
200,000. Had there been any opportunity for a
misunderstanding of our trade by telephone, you would have
grounds to take the position you have, or had you stated by
phone that you could have supplied only 200,000 brick, I
could have readily split the order. Since receiving your
letter, however, I am unable to get the same quotations I had
in hand when you were given the order. I am therefore
compelled to insist that the terms of our contract be
complied with. Of course, I cannot wait indefinitely for the
brick, but will be as liberal as possible in our demands.
Please begin as requested in my letter of yesterday to
deliver at least the 200,000, and state how soon you can
complete the 200,000 order without purchasing them in the
open market. I regret this occurrence extremely and wish that
circumstances were such that I could release you without
serious loss to ourselves." A letter from the brick
company: "Yours of yesterday to hand. We can begin
delivery of the 200,000 brick sold you the latter part of
next week and kindly ask you to inform us when you wish us to
begin on same. In regard to not releasing us from our
contract (as you call it) to delivery you 500,000 brick f. o.
b. cars Atlanta, morally we are bound to deliver you as many
brick as we have on the yard, which were not previously sold.
This we are only glad to do. Legally we are not bound at all
to deliver you any specified sum; for, if you will look at
our stationary, you will find that we do not hold ourselves
liable for any delay beyond our control. If we can make the
brick, we will be delighted to deliver same to you and there
may not be any cause to keep us from delivering them, as fast
as you will need same. As to the legal position you mention,
in the state of Georgia a contract involving a consideration
of $300 or more has to be in writing and money paid on same
before it is binding. As this contract is not in
writing and as the brick market in Atlanta does not vary to
any great extent in 24 hours, the time consumed after your
message over the phone before we informed you that possibly
we could not supply you over the 200,000 brick, we have to
decline to buy you any brick in the open market should we not
be able to deliver you the whole amount. We certainly regret
that you cannot get the same quotation that you had before
you placed the order with us, and trust that we may be in
position to deliver the full amount to you." A letter
from the ice company: "Please arrange to begin to
deliver some brick next week, and kindly have an authorized
official of your company meet me at my office Monday about
12:30, when we can discuss our differences."
There
is next a letter from the brick company: "We did not get
any definite satisfaction from the railroad and cannot enter
into a time limit contract for the balance of the brick that
you will need. If you want the 200,000 we are ready to
deliver them now, and, if you want them, let us know for we
have other orders to fill and when this kiln is empty we will
be without brick...
