134 Ga. 610 | Ga. | 1910
Miller & Sons brought suit against Jonas Mendel to recover damages for a breach of contract in refusing to receive a car-load of corn purchased by him. They alleged that the corn had been shipped under hill of lading with draft attached, and. had been held for some time at the request of Mendel, and on his promise to take np the draft; and that upon his final refusal, the com was sold; and suit was brought for the difference between what it
On behalf of the plaintiffs in the court below, the defendants in error here, it was contended that inasmuch as the defendant in the trial court admitted in his original answer the making of the contract alleged by the plaintiffs, he could not afterwards by amendment set up and get the benefit of the statute of frauds. The right to amend pleadings in this State is very broad. Indeed no exception was taken to tifo allowance of the amendment in this case. Contradictory defenses may be filed. Civil Code, § 5065; Wade v. Watson, 129 Ga. 614 (59 S. E. 294). If suit is brought upon it parol contract, which under the statute of frauds should be in writing, and the defendant in his answer admits the contract, without insisting on the statute of frauds, the court will consider that the defendant has renounced the benefit of the statute, and proceed accordingly. But if the defendant by his answer admits the parol agreement, and yet pleads the statute and insists upon the benefit •of it, he will be entitled to it notwithstanding such admission. Hollingshead v. McKenzie, 8 Ga. 457; Douglass v. Bunn, 110 Ga. 165 (35 S. E. 839). This is a different thing from admitting all the facts which create liability, and yet denying the existence of such liability in general terms. When the amendment to the an
We have experienced some difficulty in dealing with this case, because the trial proceeded, in part at least, on an erroneous basis. While the statute of frauds was pleaded and certain rulings invoked in regard thereto, it was not contended in this court by counsel for plaintiff in error that the original contract fell within the-statute of frauds. It was stated in the brief: “The original contract of sale was admitted. It was therefore without the statute: but this contract provided that the corn should be delivered within the stipulated time. The court permitted plaintiff to introduce parol evidence to show that this time limit had been waived, and instructed the. jury that if they found that the time limit had been waived, the defendant would be liable. . . We insist upon the proposition that where a contract is by the statute of frauds required to he in writing, and is-so made, the parties may not thereafter show a variation or alteration of this contract by parol testimony.” The letters introduced in evidence and the statement of the contract in the plaintiffs petition did not set any definite limit to the time for delivery. The letter from Browder, the local broker, to Mendel, which Browder in'his evidence called a “sale ticket,” stated that “T have today sold you to arrive steamer for account of L. F. Miller & Son, Philadelphia, Pa., one ear sacked 2 white-corn at 61 1-2 cents per bu. delivered.” This did not name tin-date for delivery, and therefore, in the absence of anything else, would mean that the delivery should be in a reasonable time, considering the nature of the transaction. Civil Code, § 3724. WhileBrowder was on the stand as a witness, on cross-examination, he testified as follows: “There was no time specified for the shipment of that corn. When no time is specified as to shipment, that means prompt shipment. This corn was sold under the rules of the Board of Trade, of Savannah. In selling that specified car, I did not tell Mr. Mendel at that time that it was sold under the rulepof the Board of Trade, but when Mr. Mendel went into' the grain business I told him I would only sell him grain under the rules of the Board of trade. He said that he was not a member of the Board of Trade. I said, T will sell you- grain, but whenever there is a controversy between you and the shipper as to grade, whatever the
The presiding judge informed the jury that he did not' charge them on the subject of the statute of frauds, because he did not consider that it was involved in the case, although the defendant contended that it was so. Me added, “I do not consider, under the evidence in this case, we are concerned with the giving of that law in charge to this jury, as the contract seems to come within the exceptions of the statute of frauds, and not under the statute of frauds.-” We are not clear to which of the exceptions to the statute of frauds the learned presiding judge had reference. The exceptions stated .in the codo are, when the contract has been fully executed; and where there has been such part performance of the contract as would render it- a fraud of the party refusing to comply, if the court did not compel a performance. Civil Code, § 2694. It is quite dear that the contract had not been fully executed, or there would have been no occasion for the present suit. When the-case was previously before this court, a reversal was had ‘partly because the presiding judge submitted to the jury the question of delivery, and explained to them the difference between actual and constructive deliver)'. We do not see that the evidence on the last 1 rial established a delivery of the corn. Even were there evidence in such a ease tending to show such a part performance by one party to a contract as. would render it a fraud for the other party lo refuse to comply, the court should not generally declare this as a matter of law.
I f it should be determined that the plaintiffs were entitled to recover, but questions arise concerning loss by deterioration of the-corn and the diligence of the plaintiffs in protecting it and preventing or reducing damages resulting from keeping or delay, they have been discussed in the former decision of this court. There was no error in admitting evidence on that subject. Nor was the criticism on the charge in regard to due care well taken.
We think the ease should be returned for another trial on the defenses set up in the original answer and the amendment thereto. Aside from the question of the statute of frauds, 'much of the law of the case was discussed in the former decision of it by this court.
Judgment reversed.