66 Ga. 338 | Ga. | 1881
This suit was brought-to recover the balance due on the alleged purchase of a house and lot. The plaintiff introduced in evidence a receipt for ninety-five dollars paid for the house and lot, but only signed by himself, and not by the defendant who was the party sought to be charged by the contract and sued in this action for the balance of the money. The receipt set out the price and
“ Please ask the Captain if he will let the rent go this year on the payment qf the house; if he will I can make the payment this year, and ask him to please let me know as early as possible, as I have another object in view. I almost know he will, as I have no one to help me, and people are dying out so fast I want the matter settled. Tell him I can send him all the money I have made if he wants it, or if not, send him at Christmas all I will have up to that time, as I am living very economical. Please let me know very soon, and oblige,
Very respectfully, Easter Jones.”
The plea of defendant is that she did not make the contract, and that no note or memorandum of it in writing was made by her or by any one for her authorized to sign it. The court granted a non-suit on the ground that the case was not taken out of. the statute of frauds by the receipt and letter construed together, and the sole question is, do these papers furnish such a note or memorandum of the contract as will take the case without that statute ?
It is clear that the receipt is not such a note or memorandum as will bind the defendant; because it is a paper which she did not sign. Does her letter help or heal the difficulty? Wethinknot. It does not refer to the receipt at all; nor does it otherwise describe the thing bought, nor the price, nor any of the terms of the contract. There is therefore nothing in writing signed by her which complies with the statute so as to bind her, and taking the two papers together, unless the parol testimony be let in to connect them and show that the letter referred to the receipt, there is nothing signed by her to bind her to the contract set out in the receipt. If the parol testimony could show that, away would go the statute, and it had as
The rule should not be relaxed now when the flood gates are open wide as to the competency of witnesses, and the only breakwater left -is the requisition to put this class of contract, and others of similar character, in writing.
It is well to observe that the contract was made in 1875— it seems from the parol testimony, and the receipt is dated the 1st of January, I878, and the letter the July following. Whilst if the trade had been acknowledged in writing afterwards it could make no material difference, yet the subsequent writings appear by their dates not to have been executed to make a note, or memorandum of the sale, but the receipt simply to'acknowledge the payment of money on it, and the letter seems a proposition to modify or alter its terms in regard to rent.
The defendant was not put in possession, and there was no part performance of the contract by plaintiff so as to take the case without the statute. Browne Stat. Frauds, §§453-468 et seq.
Under these views of the law, there could be no recovery for the plaintiff no matter what was the parol testimony, and the non-suit was properly awarded. The case turned on the single point, do the letter and receipt without the assistance of parol testimony, show a note or memorandum of the sale signed by the defendant so as to bind her? We think they do not, and the judgment is affirmed.
Judgment affirmed.
