113 Ga. 681 | Ga. | 1901
Motion foe Behearing.
After the record in this case was considered, the decision of the court was expressed in the foregoing headnotes. As the questions which were raised were considered plain and well-established, it was not deemed necessary that the principles of law referred to in the headnotes should be elaborated. Since the delivery of the opinion of the court, counsel for plaintiffs in error have submitted a motion for a rehearing, and we have given to their petition a careful consideration, and in deference to the conviction, which they express in an elaborate brief, that a rehearing should be granted because this “court fell into an unconscious error,” we will take occasion, in ruling on this motion, to give some of the reasons which impelled the decision sought to be reviewed. We may, however, say in advance that, in the consideration of the case on its merits, all the questions raised in the motion for a rehearing, as well as some of the authorities cited by the movants, were considered, notwithstanding they did not so fully appear on the brief for the plaintiff in error then as they do now under the motion. Wight & Weslosky Company instituted an action, under the statute, on an open account, against the administrators of Tift, to recover the sum of $103.25, which it was alleged the defendants’.intestate was due it for one barrel of cement and a named quantity of seed oats, of the value alleged, a bill of particulars giving date of the purchase and the value of the several articles being attached to the petition. The defendants were duly served, and answered the petition, admitting that they were administrators as alleged, and denying that they were indebted to the plaintiff in the sum alleged or in any other sum, or that any such account was due and unpaid, but said that they were not indebted to the plaintiff in manner and form as alleged, either on any account made by the intestate or by themselves. This general denial was all the defense that was pleaded in bar to the action. Briefly stated, the evidence of the plaintiff showed that the oats were sold to the defendants’ intestate under a parol contract, and by agreement they were
It is admitted that the statute, as a rule, must be specially pleaded, but it is insisted that there are certain exceptions to this rule, within one of which the case at bar comes. It is contended that when the statute is not specially pleaded the validity of the contract sued on may still be raised by demurrer, motion to non-suit, objection to testimony, or request to instruct the jury; and it is contended that the bill of exceptions shows that this defense was urged on the trial of the case in such a manner as to bring it within the letter and spirit of the exception referred to. The claim that this case comes within an exception to the general rule stated is based on a recital in the bill of exceptions, as follows: “After the evidence closed the said judge called upon defendant’s counsel to show cause why a verdict should not be directed for plaintiff. Thereupon defendants’ counsel presented to the court and argued, \as reasons why a verdict should not be directed,” certain propositions of law, among them that “ the contract, being only a verbal one, did not, by reason of paragraph 7 of the statute of frauds, bind the defendants, since there had been no acceptance of any part of said oats nor any actual receipt of same, nor had there been any
Our Civil Code, § 2693, par. 7, declares that to make an obligation binding on the promisor, touching any contract for the sale of goods to the amount of $50 or more, it must be in writing, etc. In the case of Armour v. Ross, 110 Ga. 413, touching the necessity of pleading the statute as a defense to a contract of the character above indicated, Mr. Justice Lewis, in rendering the opinion of this court, said: “ The promisor can avail himself in such a case of a plea that, the statute of frauds requiring the contract to be in writing, the courts can not enforce a mere oral agreement on the subject. The promisor on the other hand can waive this right, which was evidently intended merely as a personal privilege to-him.” Mr. Browne, in his work on the Statute of Frauds, § 115 (a), says: “ The operation, then, which the statute has upon a contract covered by it, is that no enforcement of the contract can be had, while the requirements of the statute remain unsatisfied, if the party against whom enforcement is sought choose to insist upon this defence; the statute does not make the contract illegal; a contract which was legal and actionable before the statute is legal since, notwithstanding the statute,” etc. Again, in the case of Draper, Moore & Co. v. Macon Dry Goods Co., 103 Ga. 663, Mr. Justice Lewis,in delivering the opinion of this court, said: “ The defense' of the statute of frauds, like that of a plea of usury, is in the nature of a personal privilege, of which the defendant can avail himself or not, as he sees proper.” It is urged in the brief, that, where the plaintiff declares only on the common counts, the defendant is not called upon to plead the statute, but may avail himself of its protection without pleading it; and it is averred that this suit was-upon the common counts, “indebted on open account,” etc. In reference to this point we have first to say, that, as the statute of frauds is treated as not affecting the validity of contracts, it is a well-established general rule, that unless the privilege of requiring the statutory evidence, given by it to the party resisting the enforcement of the contract, is sufficiently claimed by him in some proper pleading, the court will proceed with the contract under common-law rules. Browne, Stat. Fr. § 508. Mr. Wood in his work on this subject says, correct practice requires that if a party intends to rely
The exception which the movant claims is made by the record in this case is thus stated by the last-named author (§ 537): “ But this is the rule only in that class of actions where the declaration or complaint sets forth the contract upon which the plaintiff seeks recovery, and has no application, in actions of book account or general assumpsit, where the nature of the claim is not set forth, and does not appear until the evidence is actually put in; and in this class of cases the statute may be relied upon in defence, although not raised by any pleadings.” Mr. Browne in his work above cited thus states the exception: “ Where the plaintiff sues on the common counts, and therefore does not disclose the foundation of his case until he puts in his evidence, . . the defendant will be .allowed to insist upon this statutory privilege, although his pleading has not in terms done so.” There is, therefore, no difference between the rule insisted on by counsel and that which we recognize as governing this point in the case. In our opinion, however, counsel are entirely at fault in their contention that the action brought in this case was on the “ common counts.” The principle is this: if the declaration or petition sets forth the contract on which the recovery is sought, then in order to take advantage of the statute it must be pleaded. In such a case the defendant is put upon full notice of the demand of the plaintiff, the character of the demand, and the form in which it exists. But where the declaration or petition is founded upon a common count (and in using the term ““common count” common-law pleading is referred to), such as assumpsit for goods sold and delivered, the nature of the claim is not exhibited, and the defendant can avail himself of the statute without formal pleading. For in that case it is not to be presumed that the defendant has notice of the character of the debt which is not disclosed by the declaration. The common count referred to bears no resemblance to the statutory form of an action on an open account under the laws of this State. In the case under consideration the defendant was put upon notice that plaintiff claimed that defendants’ intestate was due it a certain sum of money exceeding fifty dollars, for two articles of merchandise bought “by the intestate at a particular date, and that the form of indebtedness was an
Motion for rehearing denied.