McNamara v. Georgia Cotton Co.
| Decision Date | 06 March 1912 |
| Docket Number | 3,732. |
| Citation | 73 S.E. 1092,10 Ga.App. 669 |
| Parties | McNAMARA v. GEORGIA COTTON CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
It is not necessary that an agent should have written authority to execute in behalf of his principal a contract required by the statute of frauds to be in writing; but such authority may be conferred by parol.
Where an executory contract for the sale and delivery of personal property at a specified time is entered into, and the seller fails to deliver the property at the time and place agreed on, demand for delivery is not a necessary condition precedent to the bringing of an action for damages by the purchaser for the breach of the contract.
Testimony of a witness having personal knowledge as to the market value of a commodity at a given time and place is evidence of a substantive fact, and, if undisputed, will demand a finding that the commodity was of the value fixed by the witness. In such a case, the jury cannot arbitrarily disregard such testimony, and substitute their own opinion as to the market value of the commodity.
In the trial of an action for damages for the breach of a contract such as that referred to in the preceding headnote, memoranda sent by the plaintiff to its agent, who negotiated the contract, indicating that the cotton described in the contract had been resold by the plaintiff, are mere self-serving declarations, and as such are inadmissible in support of the plaintiff's contention that an actual delivery of the cotton was contemplated.
A contract apparently legal on its face may be shown to have been founded upon an illegal consideration. Where two parties enter into a contract under the terms of which one agrees to sell and deliver at a certain time and place, and the other agrees to take and pay for, cotton of a described quantity and quality, parol evidence is admissible to show that neither of the parties contemplated delivery of the cotton but that the contract was intended as a mere speculation upon chance, to be settled upon the difference between the agreed price and the market value at the time and place fixed for delivery.
Applying to the facts of the present case the principle stated in the last preceding headnote, the court erred in directing a verdict in favor of the plaintiff.
Error from City Court of Ashburn; R. L. Tipton, Judge.
Action by the Georgia Cotton Company against J. W. McNamara. Judgment for plaintiff, and defendant brings error. Reversed.
Haygood & Cutts, for plaintiff in error.
J. T Hill, J. H. Pate, and J. W. Dennard, for defendant in error.
The Georgia Cotton Company sued McNamara for the breach of a contract alleged to have been contained in three letters. The following is a copy of one of these letters:
At the bottom of the letter appeared the following:
At the trial the judge directed a verdict in favor of the plaintiff, for an amount representing the difference between the purchase price agreed on and the market value of the cotton at the time and place of delivery, as shown by the evidence. The defendant has sued out a direct writ of error, complaining of this ruling.
1. The contract sued on is in substantially the same form and language as that involved in Terry v. International Cotton Co., 136 Ga. 187, 70 S.E. 1100. The letter addressed to the defendant contained an offer to buy from him, upon the terms stated in the letter, cotton of the character therein described. The written confirmation and acceptance by the defendant completed the contract, and it thereafter became binding on both of the parties thereto. When the contract was offered in evidence, the defendant objected to its introduction, upon the ground that it did not appear that Thomas Nesbitt, who purported to have signed the letter in behalf of the plaintiff, had written authority from the plaintiff to execute the contract. Substantially the same objection was made to the writing in the case of Terry v. International Cotton Co., supra. The point in that case was raised by demurrer. The Supreme Court held that the petition was not demurrable, either on the ground that the contract declared upon was unilateral, or that it was too vague, uncertain, or incomplete to satisfy the requirements of the statute of frauds, or that it constituted a mere option, and did not show who were the parties to it. There was no merit in this objection. "There is no statute in this state requiring the authority to make the memorandum required by the statute of frauds to be in writing, and such authority may be conferred by parol." Brandon v. Pritchett, 126 Ga. 286 (1), 55 S.E. 241, 7 Ann.Cas. 1093. It appeared from the testimony that Nesbitt was manager for the Georgia Cotton Company at its branch office at Cordele, Ga., that he had been representing the company for several years, that it was engaged in the business of buying and selling cotton, and that he had general authority to represent his principal in and about its business. This evidence was sufficient to have authorized the admission of the writings sued on.
2. It is contended that the evidence was not sufficient to authorize the verdict, because there was no proof of a demand for the delivery of the cotton prior to the date fixed in the contract for delivery, or prior to the bringing of the suit. The defendant answered, admitting that before the bringing of the suit the plaintiff had demanded payment of the amount of damages which it claimed to have sustained by reason of the defendant's breach of the contract, but stated that whether any demand was made for the delivery of the cotton the defendant "is unable at this time either to admit or deny." This is probably an evasive answer, and should be taken as an admission of the allegation that demand was made. The defendant states no reason why he was unable to admit or deny that demand was made upon him for the delivery of the cotton. He ought to have known whether demand was made or not, and he ought to have answered this allegation directly or at least by assigning some reason why he was unable to...
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