9 Ga. App. 116 | Ga. Ct. App. | 1911
“Georgia, Irwin County. This contract or agreement made and entered into this the 5th day of June, 1909, between J. K. Livingston, party of the first part, and J. C. Luke, of Irwin county, Ga., party of the second part, witnesseth: That the said party of the second part has and does by these presents sell to the said J. K. Livingston or his successors or assigns. 100 bales of cotton, to be delivered f. o. b., Ocilla, Ga., on or before September and October the 15th day of November, 1909, at and for the price of September and October 10*% cents per pound and November 10^ cents per pound, basis good middling, said cotton to be merchantable and in bales to~ average 500 pounds. The'sum of one dollar in cash has been paid oh this contract by the said J. Iv. Livingston to the party of the second part in part consideration, the receipt whereof is hereby acknowledged by the said party of the second part. The above number of bales represents the crop, or a part of the crop, of the party of the second part for the present year, and this contract is for actual cotton. Now should either party to this contract fail or refuse to carry out his or their part of same on the day speci*117 fied, time being of the essence of the contract, it is understood and agreed that the party of the second part, upon making tender of said cotton, and the refusal of the said J. I£. Livingston to accept same and settle at the price above contracted for, shall be entitled to liquidated damages in' an amount equal to the difference between the price herein contracted for and the actual value of the same grade of cotton in Ocilla on the day of such tender of cotton, and, should the party of the second part fail and refuse to deliver said cotton on the day mentioned above for its delivery, it is understood and agreed that the said J. K. Livingston shall be entitled to liquidated damages in an amount equal to the difference between the actual value of the same grade of cotton in Ocilla on the date of delivery agreed upon in this contract and the price herein contracted for. It is expressly understood and agreed that each of the parties to this.contract waive and renounce any and all rights they may have under and by virtue of the homestead or exemption laws, either State or Federal, as against the fulfillment of this contract or.the liquidated damages agreed on under same. Witness . the hands and seals of each party in duplicate, the day and year first above written.
“[Signed] J. K. Livingston. [L. S.]
“H. H. James.
“[Signed] J. C. Luke. [L. S.]
“Extended to 25th day of November, 1909, by consent of each party.”
The defendant demurred to the petition upon the ground that the contract was unilateral, and also on the ground that it was a wagering contract and not enforceable, for the reason that as the ■contract sets forth no obligation on the part of the plaintiff to buy the cotton, and is without mutuality as to any executory sale of cotton, and that as the only feature of the contract as to which there is any mutuality is that portion which provides for the payment of the difference between the -contract price and the market price at the time fixed in the contract, and therefore it does not call for the actual delivery of any cotton, but calls merely for adjustment in money of the differences in the prices of cotton, it-appears on its face to be a gaming or speculative contract, a “dealing in cotton futures.” In response to another demurrer, addressed to a different point, the plaintiff amended his declaration, and
In a contract relating to the sale of property not then in existence, in the state in which it is to be delivered (as where crops are to be grown or goods are to be manufactured before the delivery can be made), the word “sell” will be construed to mean “offer to sell,” and the contract will be held to be unilateral, unless it is shown affirmatively that the proposed buyer has accepted the terms of the contract. To illustrate: in this case, where the written contract says that “the party of the second part has and does by these presents sell to the said J. K. Livingston” certain cotton, and it appears that the contract was made in .Tune, at a time when the cotton was a growing crop, and that the delivery was to be made in October, when that crop would be ready for marketing, the word “sell” must be construed as being equivalent to “offers to sell.” It is necessary, therefore, that the contract should show also that Livingston agreed to buy.
The acceptance of this offer to sell could be shown in a number of ways; for instance, by Livingston’s signing an agreement expressly offering to buy, or by his tendering or paying the purchase price on or before the time when the offer expired or was legally withdrawn. See Sivell v. Hogan, 119 Ga. 167 (46 S. E. 67). But, though the contract relates to the sale of personal property of more than .$50 in value, acceptance may be shown in another manner; that is, that Livingston paid to Luke some portion of the purchase price of the cotton in order to bind the bargain. There is in the written contract the recital that “the sum of one dollar in cash has been paid on this contract by the said J. Iv. Livingston to the party of the second part in pail consideration, the receipt whereof is hereby acknowledged by the said party of the second part.” It is insisted that this recital, shows that Livingston paid $1 of the purchase price of the cotton, thus signifying his acceptance and taking the transaction out of the statute of frauds. At first we were of the opinion that this was a mere recital of a consideration for Luke’s offer to sell (and the fact that an offer is based on a consideration does not prevent its being unilateral), but on more mature reflection we have come to the view that the
Considering the contract as a whole, we are finally led to conclude that jury questions are presented, and that the court did not err in overruling the general demurrer to the petition.
Judgment affirmed.