Willis v. Fields

Fish, C. J. (After stating the facts.) The original contract, being for the sale of cattle to the amount of more than fifty dollars, to be binding, was required by the statute of frauds to be in writing. Civil Code, §2693 (7). It was in writing. In Augusta Southern Railroad Co. v. Smith, 106 Ga. 864 (33 S. E. 28), it was held: “A contract which must, under the statute of frauds, be in writing, and which, accordingly, is put in writing and duly executed, can not be subquently modified by a parol agreelnent.” Hnder this ruling, it would seem to inevitably follow, in the present case, that the parol agreement between Fields and Cox, made after the execution of the original contract, even taking Cox’s version of it to be true, was not binding on Fields, and, therefore,would not operate to discharge Willis, who was surety for Cox [246] on the original contract. Under the statute of frauds a parol contract for the sale of goods, wares, and merchandise, to’ the amount of fifty dollars or more, is binding if the buyer shall accept part of the goods sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment. Code section above cited. Fields, at the time of the execution of the contract, paid $600 to Cox as part payment for the cattle, and subsequently accepted from Cox part of the cattle sold and actually received the same. Do these facts take the case out of the ruling made in Augusta Southern Railroad Co. v. Smith, supra, and permit the original contract to be modified by the subsequent parol agreement relied on by Willis, for his discharge as surety? To so-rule would he to hold that a contract for the sale of goods, required by the statute of frauds to he in writing, and which was. put in writing, would, by reason of the buyer merely complying-with his obligation under the terms of the contract to pay in advance part of the purchase-price and to accept and receive part of' the goods, put such written contract -in the same category as parol, contracts and written contracts not within the statute of frauds,, thereby subjecting it to modification by a subsequent parol'agreement, and changing its character in a material particular, and,, perhaps, against the buyer’s interest, simply because he did what-he had stipulated to do in the original written contract. In our opinion, the original contract was not modified by the subsequent parol agreement, and therefore the court did not err in direetingthe verdict. This view of the case renders it unnecessary to pass, upon the other questions made by the record. Judgment affirmed. All the Justices concur..