Hamby v. Truitt

• Citation: 81 S.E. 593,14 Ga.App. 515
• Decision Date: 30 April 1914
• Docket Number: 5389.
• Parties: HAMBY v. TRUITT.
• Court: United States Court of Appeals (Georgia)

81 S.E. 593

14 Ga.App. 515

HAMBY v. TRUITT.

No. 5389.

Court of Appeals of Georgia

April 30, 1914

Syllabus by the Court.

A contract is not unilateral where it is signed by both parties, recites a part payment, and shows on the one part an agreement to sell described property and on the other part an agreement to pay a specified price therefor.

To authorize evidence seeking to supply essential particulars to an unambiguous written contract by proof of a custom of business or trade so universal as to be by implication a part thereof, the custom must be distinctly pleaded.

A written memorandum or agreement relied upon to show compliance with the statute of frauds cannot depend upon parol evidence to supply necessary or additional portions of the contract, but must be complete in itself.

A contract for the future sale or delivery of cotton, made by one engaged in the business of growing this commodity for market, to be grown in a year named on the lands of the vendor, does not affirmatively show on its face that it was a gaming contract or a mere attempt to speculate in cotton futures.

Error from City Court of Greenville; Frank Harwell, Judge.

Action by J. M. Hamby against W. B. Truitt. Judgment for defendant and plaintiff brings error. Affirmed.

N. F Culpepper, Jones & Hatchett, and McLaughlin & Jones, all of Greenville, for plaintiff in error.

W. C Wright, of Newnan, for defendant in error.

WADE J.

J. M Hamby brought an action against W. B. Truitt for an alleged breach of contract. The plaintiff set forth in his petition that Truitt was indebted to him in the sum of $1,312.50, principal, besides interest, because on September 16, 1911, they entered into a written contract in which the plaintiff agreed to sell and did sell to Truitt, and Truitt agreed to buy, "one hundred bales of cotton, consisting of fifty thousand pounds, at and for the sum of twelve cents per pound," to be delivered on the 7th day of October, 1911, at certain places designated; that previous to the day when the cotton was to be delivered the plaintiff "tendered to the defendant the amount and number of pounds of cotton of the grade and character contemplated in the contract," and demanded that the defendant receive the same and pay the plaintiff therefor; that the defendant declined absolutely to accept the cotton according to his written contract, and refused to pay the plaintiff therefor, and his only excuse for noncompliance with his contract was the decline in price of the commodity; that on September 16, 1911, the price of cotton as stipulated in the terms of the contract was 12 cents per pound, and on the day the tender was made to the defendant the market price was 9 3/8 cents per pound, so that, by the failure and refusal of the defendant to accept the cotton, and by the breach of the contract, the plaintiff was injured and damaged in the sum of $1,312.50, for which the plaintiff prayed judgment. Attached to the petition was a copy of the contract, as follows: "September 16, 1911. Received of W. B. Truitt five dollars as part payment for one hundred bales of cotton J. M. Hamby sold to said Truitt, to be delivered at Hogansville, Greenville, or at his home, the 7th October next. W. B. Truitt agrees to pay twelve cents per pound for same. J. M. Hamby. W. B. Truitt. Witness: J. W. Fields."

The defendant filed a demurrer to the petition on the following grounds: (1) Because no legal cause of action is set forth. (2) The allegation that the 100 bales of cotton were to consist of 50,000 pounds is demurred to specially because the alleged written contract is silent as to the number of pounds, and the contract is a matter for construction by the court and cannot be added to or taken from. (3) The written contract referred to in the petition did not amount to a lawful and valid contract, or to one susceptible of enforcement by law, for the reason that no number of pounds of cotton is specified in the same, the weight of the bales is not set forth, the grade of the cotton is not therein specified, and the contract, therefore, is too vague, indefinite, and incomplete to be enforced by law. (4) The contract was unilateral in its nature, and constituted only an offer to sell the cotton. (5) The written contract shows on its face that it was a speculation alone and a gaming contract, and no actual delivery of cotton was contemplated by the parties.

The plaintiff amended his petition by adding the following allegation: "Petitioner is now and was at the day and date of said contract, which was made and entered into on the 16th day of September, 1911, a planter in said county, engaged in the business of growing cotton for sale, and this sale was to embrace the cotton grown said year 1911 on plaintiff's lands." This amendment was allowed by the court. The plaintiff offered the following amendments, which were disallowed by the court: "(2) Your petitioner further shows that the weight of said bales of cotton specified in said contract was to be 500 pounds each. (3) Your petitioner further shows that it was then and there agreed that the class or grade of said cotton was to be middling, or the usual grade as classed by the commercial world." The court sustained the general demurrer and dismissed the petition, and plaintiff brought the case here for review, complaining that the court erred in refusing to allow the second and third amendments recited above, and in dismissing the petition.

1. The fourth ground of the demurrer alleges that the contract sued upon is unilateral. We do not agree with this contention, as the contract recites that $5 has...