Columbus Crate Co. v. Evans

Atkinson, J. An executory contract in parol for the sale of personal property amounting to more than $50 is not void under the statute-of frauds (Civil Code, §2693, par. 7), where the contract is after-wards partly executed by delivery of a portion of the goods and acceptance and payment therefor, such delivery and payment being in pursuance of the contract, within the time stipulated for delivery, and while both parties recognize its existence. See, in this connection,. 1 Mechem on Sales, §401; Wood, Stat. Frauds, 521; Cason v. Cheely, 6 Ga. 554 ; Bryan v. Southwestern R. Co., 37 Ga. 26 ; Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 698 (58 S. E. 200). Judgment affirmed. All the Justices concur. The defendant demurred on the following grounds: “1. Because the allegations in said petition do not set forth any cause of action. 2. Because the amount of crates alleged to have been contracted for were more than $50 worth, and the petition does not show that the contract was in writing, or that the buyer accepted any part of the goods or crates sold and actually received the same, or that something was given in earnest to bind the bargain, or in part payment. 3. Because it is not alleged that there was such a part performance as would render it a fraud of the part}! refusing to comply, if the court did not compel a performance. 4. Because it is not alleged that the plaintiff agreed to accept the said crates or pay any sum whatever for them, and said alleged contract is shown to be unilateral, and it is not alleged the plaintiff agreed to do anything or that he promised to do anything on his part. 5. Because it is not alleged that the plaintiff accepted a part of the goods or crates and actually received the same at the time the alleged contract was made. 6. Because no valid binding contract between the parties is alleged. 7. Because the petitioner does not show that any promise was made in writing, signed by the party sought to be charged therewith, or some person by him or it lawfully authorized.” The demurrer was overruled, and the defendant excepted. J. H. Martin and A. W. Cozart, for plaintiff.