Dan Gurney Industries, Inc. v. Southeastern Wheels, Inc.
Decision Date | 03 October 1983 |
Docket Number | No. 66246,66246 |
Citation | 168 Ga.App. 504,308 S.E.2d 637 |
Parties | DAN GURNEY INDUSTRIES, INC. v. SOUTHEASTERN WHEELS, INC. |
Court | Georgia Court of Appeals |
L. Dale Owens, Charles M. Dalziel, Jr., Atlanta, for appellant.
James E. Stokes, Jr., Barry L. Zimmerman, Atlanta, for appellee.
Dan Gurney Industries, Inc. (Gurney Industries) sued Southeastern Wheels, Inc. (Southeastern) on open account for $14,555.10. In its amended answer, Southeastern denied any indebtedness and asserted a claim for credit and other adjustments to the account. The trial court, sitting without a jury, found in favor of Southeastern setting off the money claimed by Gurney Industries and entering judgment for Southeastern for $6,699.04 in credits and adjustments to the account. Gurney Industries appeals.
Southeastern placed a $41,000 order for automobile "mag" wheels with Gurney Industries just before learning of the impending sale of Gurney Industries to Art Hale, Inc. (AHI), one of Southeastern's major competitors. While the shipment of wheels was still in transit, a representative of Southeastern met with Gurney Industries in California and obtained assurances that Gurney Industries had arranged for the continued production by AHI of the Dan Gurney line of wheels. In consideration of this agreement, Southeastern accepted the shipment of wheels. However, within a week of the sale of Gurney Industries' assets to AHI (excluding the accounts receivable), it became apparent to Southeastern that AHI was not going to manufacture the wheels.
1. Appellant contends that there was no evidence to support the trial court's finding that an oral agreement existed between the parties, the breach of which would make appellant responsible for damages to appellee. Evidence was introduced at trial to show that appellant had agreed to arrange for the continued production of the Dan Gurney line of wheels by AHI and that appellee, relying on appellant's making this arrangement, had agreed to accept the $41,000 shipment of wheels. It was uncontroverted that these assurances were made by appellant to appellee for the purpose of inducing appellee to accept delivery of the wheels.
Based upon this evidence, the trial court's finding that appellant agreed to be responsible for appellee's damages in the event that appellant failed to arrange for the continued production of the wheels was not clearly erroneous. The evidence indicates that the parties by mutual consent modified the open account agreement existing between them to include the oral statements assuring the continued production of the wheels. An oral modification of a preexisting contract need not be expressed in words, in writing or signed, but the parties must manifest their intent to modify the original contract. Ryder Truck Lines v. Scott, 129 Ga.App. 871, 873-874(4), 201 S.E.2d 672 (1973). Because there was some evidence here that the parties manifested their intent to orally modify the open account agreement, this court will not disturb the trial court's finding. McGhee v. Starr, 154 Ga.App. 450, 268 S.E.2d 690 (1980).
2. Appellant further contends that if the oral agreement existed, it is within the Statute of Frauds and thus fails. OCGA § 11-2-209(3) (Code Ann. § 109A-2-209) provides: "The requirements of the statute of frauds section of this article (Code Section 11-2-201 (Code Ann. § 109A-2-201)) must be satisfied if the contract as modified is within its provisions." However, we find that the agreement between the parties is outside of the Statute of Frauds due to partial performance of the agreement under OCGA § 11-2-201(3) (Code Ann. § 109A-2-201). That statute provides: "A contract which does not satisfy the [formal requirements of the Statute of Frauds] but which is valid in other respects is enforceable: ... (c) With...
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