41 Ga. App. 183 | Ga. Ct. App. | 1930
(After stating the foregoing facts.) The court did not err in granting the nonsuit. The evidence disclosed without dispute that the agreement was not in writing and that the other
It is commonly held that in the absence of an agreement to the contrary delivery of freight to a common carrier in pursuance of an executory sale of goods is regarded as delivery to the purchaser or consignee, but this rule presupposes a valid and enforceable contract for the purchase of the goods, — such a contract as complies with the statute or is unaffected thereby. Morgan v. Colt Co., 34 Ga. App. 630 (4) (130 S. E. 600), and cases cited.
Where the contract is such as to be unenforceable under the statute unless there has been an actual delivery to the purchaser, the seller can not supply this essential element by delivering the goods to a carrier, according to the custom of trade. It was held in the Denmead case, supra, that the railroad company was not the agent of the buyer “to receive and accept” the goods. “There is a different rule of performance where the instruction of the purchaser is for the seller to deliver the goods to a designated carrier for shipment in a specified way.” Marks v. Talmadge’s Sons & Co., 8 Ga. App. 557 (2), 560 (69 S. E. 1131). In the latter ease the seller has either fully executed the contract by doing what he was instructed to do, or else has done such part performance as would render it a fraud of the opposite party if the court did not compel a performance by him. Castlen v. Marshburn, 8 Ga. App. 400 (2, 3) (69 S. E. 317); Daniel v. Hannah, 106 Ga. 91 (3) (31 S. E. 734); Civil Code (1910), § 3223 (1, 3).
There is a material difference between what is necessary to constitute a delivery sufficient to satisfy the statute of frauds, and that
The decision in Tift v. Wight, 113 Ga. 681 (39 S. E. 503), involved the question of what would constitute a sufficient constructive delivery to pass title, and contained no ruling as to the applicability of the statute of frauds. This is clear from the statement made in the second headnote. Compare Blumenfeld v. Palmer Hardware Co., 8 Ga. App. 79 (2) (68 S. E. 618). We think the present case should be distinguished from the cases of Wholesale Mercantile Co. v. Jackson, 2 Ga. App. 776 (2), 782 (59 S. E. 106), and Castlen v. Marshburn, supra; but regardless of this, the judgment of nonsuit was in accordance with the decision of the Supreme Court in Denmead v. Glass, 30 Ga. 637.
Where the plaintiff’s own evidence established without dispute that the contract relied on was unenforceable under the statute of frauds, the defendant could invoke the statute by a motion for a nonsuit, expressly based upon this ground, although he had not
Judgment affirmed.