Cooper v. A. A. A. Highway Express Inc, No. 15747.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: OXNER
• Citation: 34 S.E.2d 589
• Decision Date: 02 July 1945
• Docket Number: No. 15747.
• Parties: COOPER . v. A. A. A. HIGHWAY EXPRESS, Inc., et al.

34 S.E.2d 589

COOPER .
v.
A. A. A. HIGHWAY EXPRESS, Inc., et al.

No. 15747.

Supreme Court of South Carolina

July 2, 1945.

[34 S.E.2d 589]

Appeal from Common Pleas Court of Richland County; T. S. Sease, Judge.

Action by Charles F. Cooper against A.A.A. Highway Express, Inc., and another for damages for alleged wrongful breach of a written contract. From an adverse judgment, the named defendant appeals.

Affirmed.

Thomas, Cain & Black, of Columbia, and R. J. Reynolds, Jr., of Atlanta, for appellant.

Nelson, Mullins & Grier, C. T. Graydon, and F. Ehrlich Thomson, all of Columbia, for respondent.

OXNER, Justice.

This action was brought by Charles F. Cooper, respondent, to recover damages for the alleged wrongful breach of a written contract which he claims the A.A.A. Highway Express, Inc., appellant in this action, and its co-defendant, K. D. Brobston, made with him on January 4, 1944. Respondent is a resident of South Carolina. A.A.A. Highway Express, Inc., is a Florida corporation engaged in the business of a common carrier, transacting business within the State of South Carolina. The written contract was entered into and was to be performed in the State of Georgia, and was executed in behalf of appellant by K. D. Brobston as its agent. Appellant denied in its answer that Brobston was authorized to enter into such a contract in its behalf and further pleaded that under the statutes of Georgia, where the contract was made and was to be performed, such a contract is required to be in writing, and if executed by an agent, the agent's authority to execute the contract must also be in writing. Appellant alleged that by reason of the Georgia statute of frauds such a contract was "void and unenforceable".

Under Section 20-401 of the Annotated Code of Georgia, in order for a contract of the nature involved in this action to be "binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized." Under Section 4-105 of the Annotated Code, where such a contract is required to be in writing in order to be binding on the promisor, the authority of an agent to execute same in behalf of the promisor must likewise be in writing. It is conceded that under the laws of this State the authority of such an agent need not be in writing and may be shown by parol testimony. The question presented is whether the Georgia statute of frauds should be applied in this case. The lower Court refused to apply the Georgia statute on the theory that it did not go to the substantive validity of the contract made in Georgia, but merely to the remedy provided for its enforcement. From this ruling the appellant has appealed. Respondent contends that the Georgia statute does not affect the validity of the contract, but only prescribes a rule of evidence by which it must be proved and, therefore, only affects the remedy. On the other hand, appellant contends that the statute goes to the valid-

[34 S.E.2d 590]

ity of the contract made in Georgia and affects the substantive rights of the parties.

The Georgia statute means, when applied to contracts made in that State, what the highest Court of that State says it means. Hence it becomes material to inquire whether the Courts of that State hold that the statute affects the obligation of the contract or the remedy only. To that end the Georgia cases bearing on this question will be briefly reviewed.

In Armour et al. v. Ross et al., 110 Ga. 403, 35 S.E. 787, 791, the Court, in passing on an objection to the testimony of an agent to the effect that he had authority to bind his principals by a certain contract, said: "The ground of this objection was that the agent could not bind his principals by any guaranty, unless the same was in writing, as the value of the fruit was over $50. It is claimed that this contract was void under the statute of frauds * * * but by reference to that provision in the Code it will be seen that it is necessary for such a promise to be in writing only for the purpose of making the obligation binding on the promisor. The promisor can avail himself in such a case by a plea that, the statute of frauds requiring the contract to be in writing, the courts cannot enforce a mere oral agreement on the subject. The promisor, on the other hand, can waive this right, which was evidently intended merely as a personal privilege to him. These views, we think, are sustained by a decided weight of authority."

It was said in Taliaferro v. Smiley, 112 Ga. 62, 37 S.E. 106, 108, "that the provisions of the statute of frauds affect only the rules of evidence."

In Tift et al. v. Wight & Weslosky Co., 113 Ga. 681, 39 S.E. 503, 505, the Court said: "It is urged in the brief that, where the plaintiff declares only on the common counts, the defendant is not called upon to plead the statute, but may avail himself of its protection without pleading it; and it is averred that this suit was upon the common counts, 'indebted on open account, ' etc. In reference to this point, we have first to say that, as the statute of frauds is treated as not affecting the validity of contracts, it is a well-established general rule that, unless the privilege of requiring the...