116 Ga. 1 | Ga. | 1902
This was an equitable petition brought by the Brunswick Grocery Company against J. J. Lamar and J. E. Lewis, who formerly did business as a partnership under the firm name of J. J.
By amendment the plaintiff alleged that the defendants had also contracted with reference to purchasing the good will of the business ; and added the following paragraph: “ That the defendants, on or about the 13th, 14th, and 15th days of October, 1899, inspected, approved, and thereby accepted the property so sold to them by petitioner, and thereupon actually received the same, saicl property being left in your petitioner’s possession as the bailee of the defendants.” In another amendment it was alleged that the plaintiff “ made a due and legal tender of the said goods purchased by said defendants and demanded payment for the same, and the said defendants refused to take the goods or to pay for them.”
The defendants filed a demurrer on numerous special grounds, those that are pertinent to the present discussion being, that the
1. Relatively to the statute of frauds, this case presents for determination two questions: First, do the allegations of the petition, make a case of a complete sale, with an acceptance and receipt by the vendee of all or any part of the goods sold ? Second, does the-case fall within the purview of any one of the three paragraphs of section 269.4 of the Civil Code, which enumerates the exceptions to the operation of the statute of frauds ? Section 2693 of the Civil Code names, among the obligations which must be in writing to be binding on the promisor, “ any contract for the sale of goods, wares and merchandise in existence, or not in esse, to the amount-of fifty dollars or more, except the buyer shall accept part of the goods sold and actually receive the same, or. give something in earnest to bind the bargain, or in part payment.”
It is quite clear that the words, “except the buyer shall accept part of the goods sold and actually receive the same,” necessitate-an actual, rather than a constructive or implied delivery. It is true, as was in effect ruled in the case of Daniel v. Hannah, 106 Ga. 91 (3), that this delivery need not be into the physical custody or possession of the buyer, but may be made to his agent, or at a-place designated by him. But there must be no doubt that the delivery, in whatever form it be made, is such a one as will place the goods entirely beyond the control of the vendor and completely within the control of the vendee. Accordingly, it has been held that delivery by the vendor to a carrier, for shipment to the vendee(the goods being lost or destroyed in transit) is not such an acceptance and receipt by the vendee as will prevent the operation of the statute. Lloyd v. Wight, 20 Ga. 574. In the same case, reported in 25 Ga. 216, the rule is laid down in the following lan
2. Section 2694 of the Civil Code, as before stated, enumerates the cases to which the preceding section, embodying the provisions of the statute of frauds, shall not apply. They are: (1) when the contract has been fully executed; (2) when there has been performance on one side accepted by the other in accordance with the contract ; and (3) where therehas been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance. The facts set out in the peti
It is further to be observed that the announcement by the plaintiff of the transfer of the business to the defendants and the ordering by it of goods for the defendants, not being required by the con
3. Independently of what has been here laid down, there can be no doubt that the plaintiff has failed to make a case for recovery, under' the Civil Code, § 3551, of the difference between the contract price of the goods and the price realized upon the sale of the stock by the plaintiff. There is no authority or precedent in law for the course pursued by the plaintiff, after the alleged violation by the defendants of their contract, in continuing to conduct the business for nearly a year, buying new goods, opening additional accounts (many of which were admitted to have been bad), and keeping traveling salesmen on the road for the purpose of selling the goods.
Jv,dgment affirmed.