Mendel v. L. F. Miller & Sons

Decision Date18 June 1910
Citation68 S.E. 430,134 Ga. 610
CourtGeorgia Supreme Court

Syllabus by the Court.

If a contract is of a character which, under the statute of frauds, is required to be in writing, and it does not meet the requirement of the statute in that regard, and suit is brought upon it, if the defendant in his answer admits the contract. without insisting on the statute of frauds, he will be treated as having renounced the benefit thereof. But if the defendant by his answer admits the agreement, but pleads and insists upon the benefit of the statute, he will be entitled to it, notwithstanding such admission.

Under the liberal right of amendment in this state, and the right to file contradictory pleas, although a defendant may have in his original answer admitted a contract as alleged by the plaintiff, he is not prevented from amending, and setting up the statute of frauds, if applicable to the case.

If the contract for the sale of corn, as originally made, be treated as sufficient to answer the demand of the statute of frauds but on cross-examination of a witness the defendant showed that there was a parol agreement between the witness and the defendant that sales by the former to the latter should be under the rules of a municipal board of trade, of which the defendant was not a member, and that in the absence of specification of time for shipment of goods prompt shipment was intended, and then showed by a rule of the board of trade that in case of orders for prompt shipment five days were allowed, this did not present such a case of a written contract specifying that shipments should be made in five days as to authorize the invoking against the plaintiff, upon an offer of parol evidence to show a waiver of time, of the rule that where a contract was required by the statute of frauds to be in writing, and was reduced to writing, parol evidence was inadmissible to show a binding executory modification of its terms.

The charge in some particulars did not clearly present the defenses raised by the original answer and the amendment thereto, and the case is accordingly returned for a new trial.

The letter written by the purchaser to the seller in regard to another transaction was not relevant.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by L. F. Miller & Sons against Jonas Mendel. Judgment for plaintiffs, and defendant brings error. Reversed.

Osborne & Lawrence, for plaintiff in error.

Oliver & Oliver, for defendants in error.


L. F Miller & Sons brought suit against Jonas Mendel to recover damages for a breach of contract in refusing to receive a car load of corn purchased by him. They alleged that the corn had been shipped under bill of lading with draft attached, and had been held for some time at the request of Mendel, and on his promise to take up the draft, and that upon his final refusal the corn was sold; and suit was brought for the difference between what it brought and the contract price together with certain storage charges. The plaintiffs recovered, and the case was brought to this court, after the refusal of a new trial. The judgment was reversed, because some of the instructions of the charge submitted to the jury issues which were not authorized by the evidence. Mendel v. Miller, 126 Ga. 834. 56 S.E. 88, 7 L.R.A. (N. S.) 1184. In the original answer the defendant admitted the purchase of the corn and its shipment as alleged by the plaintiff, but denied that the corn shipped was of the kind or quality ordered. When the case was returned to the trial court, the defendant amended his answer, by pleading that the subject-matter of the action was the sale of goods, wares and merchandise to the amount of more than $50, and therefore within the statute of frauds (Civ. Code 1895, § 2693, par. 7), and that no contract in writing was made, nor any memorandum thereof signed by the defendant, or by any one lawfully authorized by him, and also that the corn offered to him was not delivered within the time or in the manner ordered. The plaintiffs again recovered a verdict. Defendant moved for a new trial, and, after it was refused, excepted.

On behalf of the plaintiffs in the court below, the defendants in error here, it was contended that, inasmuch as the defendant in the trial court admitted in his original answer the making of the contract alleged by the plaintiffs, he could not afterwards by amendment set up and get the benefit of the statute of frauds. The right to amend pleadings in this state is very broad. Indeed, no exception was taken to the allowance of the amendment in this case. Contradictory defenses may be filed. Civ. Code 1895, § 5065; Wade v. Watson, 129 Ga. 614, 59, S.E. 294. If suit is brought upon a parol contract, which under the statute of frauds should be in writing, and the defendant in his answer admits the contract, without insisting on the statute of frauds, the court will consider that the defendant has renounced the benefit of the statute, and proceed accordingly.

But if the defendant by his answer admits the parol agreement, and yet pleads the statute and insists upon the benefit of it, he will be entitled to it, notwithstanding such admission. Hollingshead v. McKenzie, 8 Ga. 457; Douglass v. Bunn, 110 Ga. 165, 35 S.E. 339. This is a different thing from admitting all the facts which create liability, and yet denying the existence of such liability in general terms. When the amendment to the answer was allowed, it stood as if it were originally a part of the pleading. The defendant did not by reason of his original admission, preclude himself from setting up the statute of frauds.

We have experienced some difficulty in dealing with this case because the trial proceeded, in part at least, on an erroneous basis. While the statute of frauds was pleaded, and certain rulings invoked in regard thereto, it was not contended in this court by counsel for plaintiff in error that the original contract fell within the statute of frauds. It was stated in the brief: "The original contract of sale was admitted. It was therefore without the statute. But this contract provided...

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