J.J. Williamson & Co. v. Morgan
| Decision Date | 14 April 1921 |
| Docket Number | 11987. |
| Citation | 106 S.E. 916,26 Ga.App. 713 |
| Parties | J. J. WILLIAMSON & CO. v. MORGAN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The statute of frauds is a personal defense, and, unless made by demurrer, plea, or answer, will be treated as having been waived. It cannot be set up for the first time in the Court of Appeals.
Where "the party to be charged therewith" admits, in a signed, written confirmation, the making by him of a previous verbal agreement complete in all the usual elements of a contract, this constitutes a compliance with the statute of frauds.
A verbal contract was entered into, showing the sale and purchase of a specified number of bales of cotton of a definite grade and at a definite price, delivery to be made according to the prevailing custom in ten days after the date of the sale, and immediately after the verbal contract was made a written confirmation thereof was signed by the seller and delivered to the purchaser and accepted by him. The contract was not unilateral, as being only an offer or promise to sell the cotton, but it was an executed contract of sale, with constructive delivery of the cotton, and was mutually binding.
Additional Syllabus by Editorial Staff.
Where defendant, sued on a contract for the sale of cotton, by his plea admitted making the contract and confirming it in writing and the consideration therefor, and claimed a breach on the part of plaintiff, this, in itself, was sufficient to take the contract out of the statute.
Error from City Court of Polk County; John L. Tison, Judge.
Action by J. J. Williamson & Co. against J. A. Morgan. Judgment for defendant, and plaintiff brings error. Reversed.
In this suit J. J. Williamson & Co. sought to recover as damages the difference between the contract price and the market price in the purchase and sale of 150 bales of cotton alleged to have been purchased by them from the defendant, J. A. Morgan. The facts, briefly stated, make the following case:
Both parties were engaged in the business of buying and selling cotton. On October 22, 1918, the plaintiffs' agent, at Rockmart, bought for them from the defendant, by a parol contract, 150 bales of cotton, and the contract was confirmed by the defendant on the same day, by letter, as follows:
No actual date of delivery of the cotton is fixed by the contract. The evidence of the plaintiffs shows, however, that in the territory where this contract was made it was the custom for the purchaser to take up deliveries within ten days after purchase, and, according to their agent, the seller knew, at the time of making the contract, that the purchasers, through their agent, would not take the cotton for some days, as the agent was then leaving Rockmart to inspect and receive cotton bought at other points. On the afternoon of October 27, five days afterwards, the plaintiff in Atlanta called up the defendant over the telephone, and asked what date would be agreeable to deliver and pay for the cotton. The defendant answered that the time for such delivery would expire that day at sundown; and that if the cotton were not called for and paid for before that time the trade would be off. It was then too late for the plaintiffs to reach Rockmart by any train that afternoon, and the defendant was notified that the plaintiffs considered the trade still binding and would call for the cotton the next day and their agent went by the next morning's train with the money to receive and pay for the cotton. On arriving at Rockmart the agent found that the defendant had already sold the cotton and was in the act of delivering it to another party, and refused to carry out the contract with the plaintiffs. The evidence is uncontradicted that the difference in the contract price and the market price was $1,312.50, for which amount the suit was brought. According to the testimony of the plaintiffs' agent, he asked the defendant at Rockmart if he (the defendant) was offering any cotton that day, and the defendant announced that he had offered 150 bales at 37 3/4 cents that day, and the agent asked if the defendant would allow him to make that offer if the other party did not take it.
The agent testified:
After a while
This refers to the confirmation heretofore set out in full in this statement. The defendant in his testimony admitted substantially the facts as stated above. He admitted the sale of the cotton, the confirmation of the sale of the cotton and all that took place subsequently, but denied that there was a custom to give ten days for delivery by the seller to the purchaser of the cotton bought; stating that he did not know of any such custom, but that usually, in making sales in Rockmart, time was specified for delivery, unless the cotton was taken up at the time of the sale, and as to this sale it was understood by the plaintiffs' agent and himself that the 150 bales of cotton which had been sold on October 22 would be taken up "any time during the week or any time during the day of October 28, Tuesday." There was no mention of any custom or reasonable time to take up the cotton. At the conclusion of the evidence, on motion of the defendant, a nonsuit was awarded.
The plaintiffs' motion for a new trial, based upon the usual general grounds, was overruled, and they excepted.
E. S. Ault, of Cedartown, and Frank A. Hooper & Son, of Atlanta, for plaintiff in error.
Mundy & Watkins, of Cedartown, for defendant in error.
HILL, J. (after stating the facts as above).
Counse...
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