Jinright v. Russell, 45826
Decision Date | 28 April 1971 |
Docket Number | No. 3,No. 45826,45826,3 |
Citation | 123 Ga.App. 706,182 S.E.2d 328 |
Parties | , 9 UCC Rep.Serv. 455 Hurshell JINRIGHT et al. v. Maria Y. RUSSELL |
Court | Georgia Court of Appeals |
Owens, Littlejohn & Gower, F. Houser Pugh, Columbus, for appellants.
Roberts, Elkins & Kilpatrick, Paul V. Kilpatrick, Jr., Samuel W. Worthington, III, Columbus, for appellee.
Syllabus Opinion by the Court
This is an appeal by the defendants below from the denial of their motion for a summary judgment. The complaint alleges that the parties made an oral agreement whereby the defendants agreed:
It is further alleged that the defendants gave the plaintiff a check in the amount of $1,500 as partial payment of the contract price, but then stopped payment on the check. The defendants denied the material allegations of the complaint and set up several matters in defense.
1. One ground of the defendants' motion for summary judgment which is urged on appeal is that: '(T)he alleged agreement sued upon is oral and is void and unenforceable in that it is for the sale of goods at a price of more than $500.00 and that no memorandum in writing was executed pursuant to the Statute of Frauds and there has not been sufficient part performance so as to remove said alleged agreement from the application of the Statute of Frauds.'
Both defendants filed an affidavit in support of their motion. The affidavits admit that there were negotiations between the parties regarding the sale of the store. It is deposed that they were quoted a price of $5,500, and further that they did give plaintiff a check for $1,500, but when the plaintiff mentioned a balance remaining different from what they had understood, 'rather than get into a hassle * * * over the purchase price, we stopped payment on the check and discontinued negotiations the same day it (the check) was given.'
The check was before the lower court for consideration. It is for the amount of $1,500 payable to the plaintiff, and is drawn on Mrs. Hurshell Jinright's account with the Fourth National Bank of Columbus, Columbus, Georgia, and is signed 'Mrs. Hurshell Jinright.' The check bears the notation 'For Binder on Store.' It is endorsed by the plaintiff. On its face the check is stamped 'Payment Stopped.'
The applicable statute is Ga.L.1962, pp. 156, 176 (Code Ann. § 109A-2-201), which provides:
The Comment to Section 2-201(1) of the 1962 Official Text of the UCC (from which Code Ann. § 109A-2-201(1) is taken) states: * * *
In Kramer v. Johnson, 121 Ga.App. 848, 850, 176 S.E.2d 108, the court said: 'The legislature had the benefit of the drafter's interpretations when it enacted the Code (Uniform Commercial Code) and we cannot say that it intended something else.' See also Warren's Kiddie Shoppe, Inc. v. Casual Slacks, Inc., 120 Ga.App. 578, 580, 171 S.E.2d 643.
In our view the signed check in the present case, with its notation 'For Binder on Store,' meets all of the requirements of a writing sufficient to indicate that a contract for sale was made between the parties. The check does not prove a contract, but it would authorize the introduction of oral evidence toward that end. The party asserting the contract still must bear the burden of proving its existence and the terms. Cf. Arcuri v. Weiss, 198 Pa.Super. 506, 184 A.2d 24.
2. Another argument which the defendant-appellants make is that even if there was an agreement such as has been alleged, in particular, 'said money being payable $1,500 down and the balance payable as soon as the license was transferred,' then it is manifest that the performance under the contract was contingent upon the...
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