32 Ga. App. 30 | Ga. Ct. App. | 1924
G. W. Ailey sued the Lindale Co-operative Store, a corporation, upon a sworn open account. The statement of the account annexed to the petition contained only one item, as follows: “May 10, 1920. Meat, $136.25.” There was no demurrer calling for a more specific bill of particulars. The defendant answered, denying the material allegations of the petition, and further denying that it was indebted to the plaintiff in any sum whatever. Upon the trial Ailey testified: “I am the plaintiff in this case, and sold the goods mentioned on the 10th day of May, 1920. The amount of the bill is correct, and the bill is just, true, due, and unpaid. I went to the Lindale Co-operative Store and took the order for these goods, and they were shipped from Charleston, Tennessee. I carried the goods sued for to the depot myself. They were shipped by express, and the express agent is also the freight agent at Charleston, Tennessee. I don’t know of my own knowledge that the man I delivered the goods to is the agent of either the express company or the railroad company, but he is the man who stays at the office and attends to the business of the companies, and has been for eleven years, and I have been shipping through him during that period of time. (Cross-examination.) I don’t know who the manager of the Lindale Co-operative Store was at the time I sold these goods. I went in the store where the man I talked with and others were at work. He told me he was the manager, and told me about the large amount of business they were doing, and ordered these goods from me. I
At the conclusion of the evidence as above set out, the court directed a verdict for the plaintiff, for $136.35 principal, and $33.39 interest. To that ruling the defendant excepted.
Under the pleadings, the burden of proof was on the plaintiff to show a contract, either express or implied, for the sale by him to the defendant of goods as set out in his bill of particulars. Civil Code (1910), § 5746; Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 81 (1) (94 S. E. 65). -Since no effort was made to prove either the quantity of the goods or the reasonable value thereof, it is certain that the plaintiff neither relied upon nor proved an implied contract. Civil Code (1910), § 5513. But did he prove an express contract ? Conceding (but not deciding) that the agreement between him and the agent of the-corporation was sufficiently definite in all its terms to constitute an express contract, the burden was still upon the plaintiff to show either that the agent had authority to make the contract for the corporation or that the corporation had subsequently ratified the agent’s act in so doing. Hassell v. Woodstock Iron Works, 137 Ga. 636 (2) (73 S. E. 1052). “It is well settled that agency is not to be
The next question is: Did the evidence demand a finding that the meat alleged to have been sold was delivered to the defendant ? Certainly, under the pleadings, proof of delivery, either actual or constructive, was essential to the plaintiff’s case. Civil Code (1910), §4125; Loyd v. Wight, 20 Ga. 274 (65 Am. Dec. 636); Biggers v. Equitable Mfg. Co., 124 Ga. 1045 (3) (53 S. E. 573); McCoy v. Meador, 140 Ga. 253 (2) (78 S. E. 848). Actual delivery alone will suffice, where the contract declared on falls within the statute of frauds and that .statute is specially'invoked in the lower court. Denmead v. Glass, 30 Ga. 637; Knowles v. Dayries Rice Co., 10 Ga. App. 569 (73 S. E. 856). In this court the defendant seeks to invoke that statute, but appears to have made no effort to do so in the lower court; and the rule is well settled that such questions cannot be raised for the first time in this court. Johnson v. Latimer, 71 Ga. 470 (3); Bentley v. Johns, 19 Ga. App. 657 (91 S. E. 999).
The plaintiff made no effort to show actual delivery, but testified that he shipped the meat by express, and personally delivered it to the express company at Charleston, Tenn., for shipment to the
The judgment of the lower court directing a verdict for the plaintiff was clearly erroneous.
Judgment reversed.