Planters Cotton-oil Co. Inc v. Bell

• Decision Date: 16 October 1936
• Docket Number: No. 25698.,25698.
• Parties: PLANTERS COTTON-OIL CO., Inc. v. BELL.
• Court: Georgia Court of Appeals

54 Ga.App. 433

188 S.E. 41

PLANTERS COTTON-OIL CO., Inc.

v.BELL.

No. 25698.

Court of Appeals of Georgia,

Division No. 1.

Oct. 16, 1936.

Rehearing Denied Oct. 29, 1936.

syllabus by the Court.

1. A contract required by the statute of frauds (Code 1933, § 20-401) to be in writing may not, by subsequent oral agreement, be changed as to its nature and terms. If the parties have abandoned the terms of the original contract and fully performed the oral agreement subsequently entered into, such agreement and performance may be pleaded and proved in defense to a suit on the original contract.

2. The evidence supports the verdict rendered, and the court did not err, for any reason assigned, in overruling the motion for new trial.

Error from Superior Court, Wilkes County; C. J. Perryman, Judge.

Action by the Planters Cotton-Oil Company, Inc., against T. W. Bell. To review an adverse judgment, plaintiff brings error.

Affirmed.

Henry G. Howard, of Augusta, and W. A. Slaton, of Washington, for plaintiff in error.

Clement E. Sutton, of Washington, for defendant in error.

GUERRY, Judge.

Planters Cotton-Oil Company filed this action against T. W. Bell on a written contract whereby the defendant agreed to purchase cottonseed for plaintiff during the season of 1934, on money to be advanced by plaintiff. According to the terms of the contract, the seed were to be delivered to plaintiff after purchase by the defendant. The contract further provided: "It is a part of this contract that the said T. W. Bell is to receive as compensation the carload price for the cotton-seed the date shipped. It is a part of the contract that the cotton-seed bought is to be shipped out as fast as a car-load is accumulated." The petition alleges that plaintiff advanced the sum of $13,002.27 under this contract and that defendant delivered approximately 290 tons of cottonseed which were credited to him at the carload price the day they were delivered and that said sum amounted to $12,086.99, leaving a balance due plaintiff of $915.28. The defendant admitted the correctness of the amount of money alleged to have been advanced him by plaintiff, and also the number of tons of cottonseed he delivered to plaintiff. However, he denied the correctness of the credits made by reason of the price allowed for the seed. It was the contention of the defendant that, after the execution of the contract, it was departed from by subsequent agreements and conduct, and that on the sale of each lot of seed the price was either agreed on orally, or by certain sales memoranda signed by both parties; and that for each sale made a complete and distinct contract was had which was either ratified later in writing by plaintiff or fully acted upon by both parties; that plaintiff agreed continually to allow defendant to haul the seed as he bought them to plaintiff's mill in Augusta, and when defendant was ready to sell, a price would be agreed on by both parties, which said agreements as to price and amount of seed were made with one W. H. Harbor agent of plaintiff; that, if the seed had already been delivered without the price being agreed on, defendant was to be given credit on his account at the sale price, and, if seed had not been delivered, defendant was credited with the agreed price when delivery was made. Nine such contracts were made between the parties, covering 205 tons of seed, six of which were confirmed in writing, the others not so confirmed butboth parties being in agreement thereto. The dispute arises as to the amount with which the defendant should be credited for 85 tons of seed. Defendant contends that Harbor, who had made the other contracts with him as to price and amount of seed, for plaintiff, on January --, 1935, agreed that defendant was to be allowed $50 per ton for said 85 tons and that at that price plaintiff would be due him $185. The jury returned a verdict for this amount.

By demurrer and exceptions to the charge of the court, the plaintiff contended that the statute of frauds prevented the operation of...