137 Ga. 36 | Ga. | 1911
1. Brannon brought suit against Kaigler, making, in the original and amended petition, substantially the following allegations: The defendant directed the plaintiff, on April 26, 1909, to sell for him 20 bales of cotton at 10 cents per pound, to be delivered October 1, 1909. Plaintiff, in accordance with such instructions, sold Ford & Co. 20 bales of cotton, to be delivered October 1, 1909. The defendant refused to deliver the cotton, and the plaintiff was compelled to pay Ford & Co. “the difference between the price of cotton at 10 cents, at which it was sold, and the price of 1314 cents, its market value at the date of settlement. Petitioner made such settlement at the instance and request of G. O. Kaigler, who promised then and there to repay petitioner the
2. The charges of the court excepted to, béing in accordance with the foregoing ruling, were not subject to the exceptions thereto, to wit: That they were not correct statements of the law applicable to the facts of the case, and were not adjusted to the evidence in the case. There is no evidence of any binding contract between Kaigler and Brannon, or between Kaigler and any other person. The charges ignore the contention of Kaigler that “the contract between him and Brannon falls within the statute of frauds.” “The evidence tends to show that, if Brannon paid any money to B. B. Ford & Co., it was on a contract made for 50 bales of cotton in his own name, and in which contract Kaigler was in no way concerned.” “The court erred in charging the jury, under the circumstances stated, the fact that, though no written contract was made, it would still be binding upon the plaintiff if he made an oral contract; the charge being error, because under the evi- ■ dence in this case the contract falls within the statute of frauds. ”
3. The court did not err in refusing a new trial on the ground that “the court ignored the contention of the defendant that said contract was within the statute of frauds; ” nor on the ground that “ there was no evidence that G-. 0. Kaigler had made any written contract, either with Brannon or with any other person, which was binding on him;” nor on the ground that “the evidence tends to show that if Brannon paid any money to B. B. Eord & Co., it was on a contract made for 50 bales of cotton and in his own name, and in which contract Kaigler was in no way concerned.”
4. The court did not err in failing to charge the jury as follows: “I charge you that any contract for the sale of goods, wares, and merchandise, in existence or not in esse, to the amount of $50 or more, except the buyer shall accept part of the goods and actually receive the same, or give something in earnest to bind the bargain or in part payment, must be in .writing and signed by the party to be charged therewith, or some person by him lawfully authorized.” Nor in failing to charge the jury “upon the subject of statute of frauds, and upon one of his contentions and upon his special plea filed in said ease, wherein movant pleaded in said case, if there was any contract of sale made, that the same was within the statute of frauds, and therefore void.”
Judgment affirmed.