Shinall Bros. v. Skelton

Hill, J. This was a suit on notes made by the defendants in payment for an electric-light plant. Accompanying the notes was a contract in relation to the plant, and this contract and the notes referred each to the other so as to make them one contract. When the case was called for trial the defendants admitted by a plea that the notes and the contract referred to constituted the entire contract between them and the plaintiff, and they admitted a prima facie case in the plaintiff for the purpose of securing the opening and conclusion. The answer, in substance and effect, was an offer on the part of the defendants to modify the contract by a subsequent agreement made with the agent of the plaintiff and subsequently approved by the plaintiff to meet a complaint made by the defendants to the plaintiff that the machine was not satisfactory in the respects indicated in the plea. The plea alleged also that these representations made subsequently to the execution of the contract for the purchase of the plant, and made by the agent of the plaintiff and subsequently approved by the plaintiff, were never performed by the plaintiff, and that this entitled defendants not only to a modification of the contract, but to a rescission. The contract in question provided that any complaint should be made within fifteen days and no longer. The complaint made by the defendants was not made until after the expiration of this period. There was no offer to restore the machine. The judge excluded the proffered evidence on the ground that the original contract was required by the statute of frauds to be put in writing, and that it was put in writing and executed, and could not be modified by any subsequent parol agreement. His judgment in this respect is the only error assigned specially in the motion for new trial, and is the only one insisted upon in this court; it being admitted in judicio that on the merits of the case the allegations of the petition showed a good cause of action' in the plaintiff and the general grounds therefore are not relied upon. The headnotes need no elaboration, as they fully cover the points made by the record and relied upon in this court. ■Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.