106 Ga. 91 | Ga. | 1898
To the return of appraisers appointed to set apart, a year’s support to the widow of R. M. Daniel, objections were filed by Hannah, that certain cotton embraced in the return of the appraisers did not belong to R. M. Daniel at the time of his death, and that it was then and is still the property of caveator, and not a part of the estate of R. M. Daniel. The case was by consent appealed from the court of ordinary to the superior-court, and the trial in the latter court resulted in a verdict in favor of the caveator. The applicant for a year’s support moved, for a new trial, which was refused, and she excepted.
■ The charge of the court complained of is evidently based, upon the theory of the caveator’s case, that the facts he relied on for a recovery constituted an actual delivery and acceptance of the goods sold. Counsel for plaintiff in error contended that there-was no such delivery and acceptance as is contemplated in § 2693, par. 7, of the Civil Code, there being no testimony that, the caveator actually received the goods in his possession, or that they had been delivered by the vendor to any one for him. The paragraph above cited provides, that any contract for the sale of goods, etc., to the amount of fifty dollars or more, ex-. cept 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, is void. It is true that what would constitute good delivery in ordinary contracts of sale would not necessarily be sufficient in that class of contracts falling within the above statue of frauds. But it is difficult to conceive how a delivery can be more complete than it is when dominion and control over the property is relinquished by the vendor, and its absolute custody, and the unconditional power of disposing of the same, is transferred to the vendee. While Reeves testified he held the cotton for Daniel, yet it does not .appear from his testimony, or elsewhere in the record, that there was any understanding between him and Daniel after it was moved from the ginnery to the roadside that Reeves should continue to keep the custody of the cotton for Daniel’s benefit. On the other hand, according to Hannah’s testimony, it was moved from the ginnery by virtue of the special contract betAveen him and Daniel, designating a particular place for delivery. This place, it seems, was not even on the premises of a third party, but on a public highway which ran' by of through the land of Reeves. This was a public place, and hence as accessible to one party as the other. By transferring it there, the vendor relinquished
The authorities cited by plaintiff in error from decisions of' this court we do not think at all in point. The case of Lloyd v. Wright, 25 Ga. 215, simply decides that where the buyer continues to have the right to object either to the quantum 'or the quality of the goods, there has been no acceptance and receipt within the meaning of the- statute. In Denmead v. Glass, 30 Ga. 637, it was decided that a delivery of goods to a railroad company, under the statute of frauds, is not a delivery to the purchaser; the company not being the agent of the buyer “to receive and accept” the same. There is no question of' agency in the case at bar, and, as before seen, there was, under the contract, no right reserved in the vendee to reject the goods for.
Judgment affirmed.