Sivell v. Hogan
| Decision Date | 10 December 1903 |
| Citation | 46 S.E. 67,119 Ga. 167 |
| Parties | SIVELL v. HOGAN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. At common law the general rule was that when a seal was affixed to an instrument there was a conclusive presumption of law that it was founded upon a consideration. Civ. Code 1895, § 3656, is merely a codification of the common law.
2. The fact that a party endeavoring to enforce a contract under seal and governed by the general rule may himself introduce evidence showing that the contract was in fact without consideration furnishes no reason for not enforcing it.
3. A unilateral contract within the statute of frauds becomes mutual and binding upon the party not originally bound, if he does any act which would take the transaction out of the operation of the statute so far as he is concerned; and where he thus becomes bound the other party cannot insist that the contract is invalid because the obligation of both was not originally in writing.
4. A signed a writing agreeing to deliver to B. at a time and place stated and at a price named goods exceeding in value $50. B. did not agree, in writing or otherwise, either at the time the above paper was signed or thereafter, to pay for the goods. The time for delivery passed without B. doing anything to bind himself to pay for the goods. After that date B tendered the price and demanded the goods. Held that B. could not maintain against A. an action for damages for failure to deliver at the time and place fixed in the writing. The right of B. to demand an enforcement of the obligation depended upon his doing some act prior to the time fixed for delivery which would bind him to pay in the event of delivery.
Error from City Court of La Grange; F. M. Longley, Judge.
Action by T. M. Hogan against E. M. Sivell. Judgment for plaintiff, defendant brings error. Reversed.
Harwell & Lovejoy, for plaintiff in error.
Henry Reeves and J. R. Terrell, for defendant in error.
T. M. Hogan brought suit against E. M. Sivell for damages claimed to have resulted from the breach of an alleged contract of which the following is a copy: The defendant pleaded that the instrument sued on was without consideration, and wanting in mutuality, and therefore void; that the contract, if a contract at all, was a transaction in cotton futures, and that any promise made by the plaintiff to pay for the cotton was void under the statute of frauds. The petition alleged that the plaintiff tendered to the defendant on November 1, 1900, the agreed price of the cotton, and that the defendant refused to accept the money and deliver the cotton. The plaintiff died before trial, and his administratrix became a party in his stead. The court directed a verdict for the plaintiff, and the judgment overruling the defendant's motion for a new trial was reversed by this court. 115 Ga. 667, 42 S.E. 151. On the second trial the jury found for the plaintiff $100, with interest from November 1, 1900. The defendant's motion for a new trial having been again overruled, he excepted.
1. At common law a seal imported a consideration, and, as a general rule, a contract under seal was not open to an attack that it was without consideration. 21 Am. & Eng. Enc. L. (1st Ed.) 898; 2 Bl. Com. (Cooley) *446; 6 Am. & Eng. Enc. L. (2d Ed.) 682, 762, 763, 798; 11 Am. Dig. (Cent. Ed.) § 406; Broom's Com. L. 284, 285. The rule, however, was subject to important exceptions. It did not apply to contracts in restraint of trade, or those in which the consideration was fraudulent or illegal. See 21 Am. & Eng. Enc. L. (1st Ed.) 899. Many states have abrogated the common-law rule. See 6 Am. & Eng. Enc. L. (2d Ed.) 798. The common-law rule was applied by this court in the cases of Rutherford v. Baptist Convention, 9 Ga. 54, and Justices v. Smith, 13 Ga. 502, and recognized in Bruton v. Wooten, 15 Ga. 570. There has never been any legislative enactment on the subject in this state. The first Code codified the common law with reference to this matter, and the provision of that Code has been incorporated into Civ. Code 1895, § 3656, which is as follows: etc. The case of Smith v. Smith, 36 Ga. 184, 91 Am.Dec. 761, was decided since the Code. The question there was whether the court would decree performance of an agreement of settlement of an estate. The agreement was under seal, and Judge Harris, in discussing the question of consideration, said: The cases of Neil v. Bunn, 58 Ga. 583, and Simms v. Lide, 94 Ga. 553, 21 S.E. 220, contain a bare intimation that the presumption of a consideration arising from the presence of a seal would be a rebuttable one, but in neither was the point made or passed upon. In none of these cases was the provision in the Code cited or referred to. The only case which deals directly with the section of the Code is Weaver v. Cosby, 109 Ga. 310, 34 S.E. 680, where Mr. Justice Lewis apparently treated the provision as meaning that a seal was merely prima facie evidence of a consideration, saying that an instrument under seal then being dealt with "raised a strong presumption of law" that it was founded upon a consideration. Inasmuch, however, as it was held in that case that the evidence offered to rebut the presumption was not sufficient for this purpose, the decision is not to be regarded as binding authority for the proposition that the seal would not be conclusive upon the question of consideration. It is manifest, in our opinion, that the section of the Code is but a codification of the common law, and that the word "generally" used therein was inserted for the purpose of excluding the exceptions of the common law, as well as any other exceptions which might have been or might be made in the law of this state. An exception has been made in favor of deeds. Civ. Code 1895, § 3599. And before the adoption of the Code it was held by this court that failure of consideration could be pleaded to a note under seal. Albertson v. Holloway, 16 Ga. 377. We are not, however, prepared to adopt the reasoning upon which this decision was founded that the common-law rule related only to such instruments under seal as were known to the common law as "specialties," there being no such thing at common law as a promissory note under seal. We rather prefer the view of the Supreme Court of South Carolina that a seal raised a presumption of the existence of a consideration at the time the contract was entered into, but not that it had not since failed either wholly or in part; and that, while want of consideration could not be pleaded, failure might. See Koster v. Welch, 35 S.E. 435, and citations. Our Code defines a specialty to be a contract under seal. Civ. Code 1895, § 3634. We are not, however, to be understood as definitely committing ourselves at this time to the proposition that even want of consideration cannot be pleaded to a promissory note under seal, though this would seem to be true.
2. It is said, though, that this rule ought not to be applied in the present case, because the...
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