Frey v. Friendly Motors, Inc., 48344
| Decision Date | 13 September 1973 |
| Docket Number | No. 48344,No. 2,48344,2 |
| Parties | Bess L. FREY v. FRIENDLY MOTORS, INC |
| Court | Georgia Court of Appeals |
Robert J. Frey, Decatur, for appellant.
Swift, Currie, McGhee & Hiers, Clayton H. Farnham, Atlanta, for appellee.
Syllabus Opinion by the Court
Bess L. Frey appeals from the trial court's grant of summary judgment for Friendly Motors, Inc., ('Friendly') in her suit brought to recover the value of her bargain for the purchase of an automobile for some $2,400. This bargain is alleged to have been made and subsequently repudiated by Friendly.
The facts show that Mrs. Frey went to Friendly's premises accompained by her husband, and there executed a buyer's order for an automobile, which itself stated that it should not be binding until signed by an agent of Friendly. She tendered it with her check for $200 earnest money to an agent of Friendly as an offer to buy the automobile. Subsequently, numerous oral communications were held by Mrs. Frey and her husband with a Friendly salesman, who in the conduct of negotiations went back and forth between the Freys and a Friendly sales manager empowered to accept the offer. Mr. Frey then told the salesman to bring him either an acceptance by Friendly or the return of the earnest money check. The salesman on his deposition testified that he then received the sales manager's consent to sell the car 'tonight' for the amount written on the offer, and that he told the Freys they had the deal they wanted, and they had only to fill out and sign the bill of sale. Protesting that it was growing late in the evening and they would prefer to complete the paperwork the next morning, the Freys departed, apparently confident that the car could be picked up the next morning. In their affidavits, both Mr. and Mrs. Frey state that the salesman agreed to their plan to return the next day to pick up the car. Actually, when they returned they found that Friendly's position was that there was no contract. Friendly's evidence tends to show that the buyer's order was never signed by anyone on behalf of Friendly, and the earnest money check was torn up by Friendly after the Freys departed.
In its defensive pleadings, Friendly did not plead the statute of frauds, and does not seek here to claim the benefit of it. Code Ann. § 81A-108(c). It is Friendly's position that the statute of frauds is inapplicable to the facts here; that the negotiations never reached the point of a contract; and that the offer was never accepted because by its terms it required the acceptance to be in writing and the same was never signed.
Because Friendly has not claimed the benefit of the statute of frauds but has staked its position on the failure of the parties to come to a meeting of the minds, there is no requirement that such meeting of...
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