54 Ga. App. 433 | Ga. Ct. App. | 1936
Planters Cotton-Oil Company filed this action against T. W. Bell on a written contract whereby the defendant agreed to purchase cottonseed for plaintiff during the season of 1934, on money to be advanced by plaintiff. According to the terms of the contract, the seed were to be delivered to plaintiff after purchase by the defendant. The contract further provided: “It is a part of this contract that the said T. W. Bell is to receive as compensation the car-load price for the cottonseed the date shipped. It is a part of the contract that the cottonseed bought is to be shipped out as fast as a car-load is accumulated.” The petition alleges that the plaintiff advanced $13,002.27 under this contract, and that the defendant delivered approximately 290 tons of cottonseed, which were credited to him at the 'car-load price the day they were delivered, and that said credit amounted to $12,-086.99, leaving a balance of $915.28 due to the plaintiff. The defendant admitted the correctness of the amount of money alleged to have been advanced him by plaintiff, and the number of tons of cottonseed he delivered to plaintiff. However, he denied the correctness of the credits made, by reason of the price allowed for the seed. It was the contention of the defendant that after the execution of the contract, it was departed from by subsequent agreements and conduct, and that on the sale of each lot of seed the price was agreed upon either orally or by certain sales memoranda signed by both parties; and that for each sale made a complete and distinct contract was had, which was either ratiffed later in writing by plaintiff or fully acted upon by both parties; that the plaintiff agreed continually to allow the defendant to haul the seed as he bought them to plaintiff’s mill in Augusta; and when defendant was ready to sell, a price would be agreed on by both parties, which agreements as to price and amount of seed were made with W. H. Harbor, agent of the plaintiff; that if the seed had already been delivered without the price being agreed on, defendant was to be given credit on his account at the sale price; and that if seed had not been delivered, defendant was credited with the agreed price when delivery was made. Nine such con
By demurrer and by exceptions to the charge of the court to the jury the plaintiff contended that the statute of frauds prevented the operation of any abandonment of the original contract or change in its terms. If the plea filed by the defendant had attempted to engraft an oral contract onto a contract required by the statute of frauds to be in writing, the demurrer would have been well taken. A subsequent oral contract fully executed prevents the operation of the statute. Code, § 20-401 (7); Daniel v. Hannah, 106 Ga. 91 (31 S. E. 734); Castlen v. Marshburn, 8 Ga. App. 400 (69 S. E. 317); Good Roads Machinery Co. v. Neal, 21 Ga. App. 160 (5) (93 S. E. 1018). The evidence, while conflicting, was sufficient to support the verdict. It is uncontradicted that instead of the price of seed being determined by the market price of the day shipped, as provided by the written contract, the price of at least 205 tons of these seed was fixed and controlled by nine subsequent written or oral agreements entered into between the parties. There is evidence that after all but about six tons of the seed were delivered, an oral agreement was entered into, fixing the price of 85 tons of seed. There was evidence from which the jury were authorized to find that an authorized agent of the plaintiff made an agreemeirt as to the price to be paid for the seed which the defendant claimed had not at that time been settled for, which price was not in excess of the 'market price on the day the agreement was made. This same agent had made most of the other nine contracts. The president of the plaintiff company testified: “Mr. Harbor [the agent referred to] is our traveling salesman. He dealt with Mr. Bell, bought seed from Mr. Bell. . . After this dispute came up, I sent him up here a number of times to adjust the matter. Harbor had authority to settle within
Judgment affirmed.