Turner v. P. Lorillard Co.

• Decision Date: 22 March 1897
• Citation: 28 S.E. 383,100 Ga. 645
• Parties: TURNER v. P. LORILLARD CO.
• Court: Georgia Supreme Court

28 S.E. 383

100 Ga. 645

TURNER v. P. LORILLARD CO.

Supreme Court of Georgia

March 22, 1897

Syllabus by the Court.

1. A contract for the purchase of goods "to the amount of fifty dollars or more," though in writing, is nevertheless within the statute of frauds, when it appears that the parties intended to contract specifically as to price, but the instrument neither designated what it was to be, nor otherwise stated the actual agreement of the parties with reference to price in such manner as to render its amount properly ascertainable by the aid of extrinsic evidence.

2. Consequently, where such a contract was in the form of a written order for the goods, though it specified certain discounts, which were to be deducted from the gross amount of the invoice when rendered, it could not be taken out of the operation of the statute by parol evidence, which, in connection with other writings not referred to in the order itself, showed that, by a long course of dealings between the parties, similar goods had been uniformly billed to the party signing the order at a fixed and unvarying price per pound but with varying discounts.

3. If in the present case the intention to contract specifically as to price is not manifest from the terms of the order itself the parol evidence which was introduced with reference to this matter made it absolutely certain that such intention existed.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by A. W. Turner against the P. Lorillard Company for damages for alleged failure to deliver goods ordered. From an order granting a nonsuit, plaintiff brings error. Affirmed.

T. B West and L. D. Moore, for plaintiff in error.

Dessau, Bartlett & Ellis and Robt. Hodges, for defendant in error.

COBB J.

Turner sued the Lorillard Company for damages on account of an alleged failure on its part to deliver 960 pounds of snuff, at 38 3/4 cents per pound, which Turner had previously ordered. On the trial of the case it appeared from the plaintiff's testimony that he had signed a written order for the snuff, which was accepted by the Lorillard Company through its agent. Everything was stated in the writing to make it a complete contract, except the price, which was left blank after each item. It was sought to supply this defect by showing dealings between plaintiff and defendant, extending through a number of years, in which the article bargained for had always been sold at a stated price per pound, subject to the discounts which were stated in the writing. Bills for other goods ordered by the plaintiff from the defendant were introduced in evidence, and parol evidence was offered to show the dealings between these parties, in order to connect the writings, and thereby complete the contract of sale. The court held that the contract was incomplete, and that the price could not be supplied by parol evidence, and granted a nonsuit in the case.

1. The fourth section of the statute of frauds provided that no action should be brought upon certain promises therein specified, "unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." The seventeenth section of the statute declared that "no contract for the sale of goods, wares and merchandise, for the price of ten pounds sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." It is to be noticed that in order to satisfy the fourth section the "agreement" must be in writing, and to satisfy the seventeenth section there must be some note or memorandum of the "bargain" in writing. This statute was embraced among those which are described in the act of February 25, 1784 (Cobb's Dig. p. 721), declaring what statute laws of England were of force in this state; and it remained the law of Georgia, in the exact words above quoted, until the adoption of the Code of 1861. In the case of Henderson v. Johnson, 6 Ga. 390 having under consideration the fourth section above quoted, the court say: "By the word 'agreement,' mentioned in the statute, it must be understood the consideration for the promise, as well as the promise itself, and that, if extrinsic parol evidence could be received to show the consideration of the written agreement, the very object of the statute would be defeated." This was the construction placed upon the section by the English courts in the case of Wain v. Warlters, 5 East, 10. In the case of Hargroves v. Cooke, 15 Ga. 321, the doctrine of Wain v. Warlters is considered and questioned, but that it had been adopted by the court in the case cited supra is recognized. The decision in Wain v. Warlters was made by Lord Ellenborough in 1804, and was therefore not absolutely binding upon this court, and it seems that this was not the recognized construction placed upon the statute by the English courts. In Ex parte Gardom, 15 Ves. 286, Lord Eldon said: "Until that case [Wain v. Warlters] was decided, some time ago, I had always taken the law to be clear that if a man agreed, in writing, to pay the debt of another, it was necessary that the consideration should appear on the face of the writing." In the case of Baker v. Herndon, 17 Ga. 568, the court having under consideration the act of January 19, 1852 (Acts 1851-52, p. 243), which provided that that part of the fourth section of the statute of frauds which relates to special promises to answer for the debt, default, or miscarriage of another person should be so construed that the agreement in writing would be sufficient, although no consideration was expressed therein, it was held that the act referred to was simply declaratory of the law of this state at the time of its passage. The court declined to follow the case of Wain v. Warlters, on the ground that it was decided in the year 1804, and was therefore not binding as authority; and the ruling in ...