J. R. Harris & Co. v. P. E. Vallee & Co.

• Decision Date: 27 February 1923
• Docket Number: 13250.
• Citation: 116 S.E. 642,29 Ga.App. 769
• Parties: J. R. HARRIS & CO. v. P. E. VALLEE & CO. ET AL.
• Court: Georgia Court of Appeals

116 S.E. 642

29 Ga.App. 769

J. R. HARRIS & CO. v. P. E. VALLEE & CO. ET AL.

No. 13250.

Court of Appeals of Georgia, Second Division

February 27, 1923

Syllabus by the Court.

Where in a suit to recover damages for a breach of a contract which the statute of frauds requires to be in writing, the petition alleges a contract, but fails to allege facts sufficient to show that the contract met the requirements of the statute of frauds, the contract presumably satisfies the statute, if the contrary does not affirmatively appear from the petition.

Where there was an allegation in a petition to the effect that the contract sued upon, which appeared to be one required by the statute to be in writing, arose out of an interchange of telegraphic communications, and the petition purported to quote the communications in full, but did not allege that they were dated, or that any one of them was signed by the party sought to be bound, and where it did not affirmatively appear from the petition that such written communications were not dated or signed by the party sought to be bound, the contract presumably met the requirements of the statute of frauds, and, if to satisfy the statute, it was necessary that the date upon which any of the communications was made should appear upon its face, or that any of the communications should be signed by the party making it, such was presumably true.

The alleged contract sued on, as appears from the allegations in the petition, was not lacking in mutuality.

Ambiguities in terms used in written contracts, and their meanings as understood in the trade and by the contracting parties, may be explained by parol proof of its trade usage and custom. Written contracts containing such explainable terms are in this respect sufficiently certain and definite to meet the requirements of the statute of frauds. Where the writing calls for a "carload" of a certain commodity, such as sugar, it may be shown by parol that the contracting parties are dealers in the commodity, and that, according to the usage and understanding of the trade, a "carload" of sugar refers to a definite and certain quantity to be determined by weight.

The alleged contract here sued on, as evidenced by an exchange of telegrams hereto attached and arranged as appears in the order of their execution, contains an offer and an acceptance, and is not lacking in mutuality. It is also sufficiently definite as to quantity, price, and time to meet the requirements of the statute of frauds and to be capable of enforcement.

The telegrams exchanged clearly establish a contract between the parties, and the subsequent correspondence between them is upon this assumption. There being clearly a contract between the parties, even though the defendant seeks to show that there was not such a contract, any error in the charge submitting as an issue the question of the existence of a contract, was harmless to the complaining party.

It being clearly emphasized before the jury, by an abundance of evidence, that the defendant contended that no contract existed, and...