Howel v. Kinney

Court of Appeals of Georgia

Howel v. Kinney

105 S.E. 716, 26 Ga. App. 168, 1921 Ga. App. LEXIS 44

CourtCourt of Appeals of Georgia

DecidedJanuary 25, 1921

Docket11593

StatusPublished

Cited by2 cases

This text of 105 S.E. 716 (Howel v. Kinney) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howel v. Kinney, 105 S.E. 716, 26 Ga. App. 168, 1921 Ga. App. LEXIS 44 (Ga. Ct. App. 1921).

Pincite

Opinion

Luke, J.

(After stating the foregoing facts.) In the contract sued upon the language, “ I herewith confirm sale to you of 100 bales cotton,” clearly showed an offer to sell upon the-terms and at the time stipulated in the contract. Luke v. Livingston, 9 Ga. App. 116 (70 S. E. 596). The contract, being also signed by the buyer, showed on its face that the offer to sell had been accepted by him. It. thus became a mutually binding contract, valid under the statute of frauds, was not unilateral, and no tender of the agreed price prior to the date fixed for delivery was necessary. Terry v. International Cotton Co., 136 Ga. 187 (70 S. E. 1100). And in the instant case, the seller having notified the buyer that he refused to perform under the contract, a tender of the purchase-money by the latter at the date fixed for delivery was rendered unnecessary. In McGhee Cotton Co. v. Herrine, 10 Ga. App. 700 (74 S. E. 66), the contract (which was there held to be binding upon both parties) is on all fours with the one now under consideration, with the single exception that in the McGhee case the word “ accepted ” appeared at the bottom of the contract just above the signature of the McGhee Cotton Company, the buyer of the cotton in that case, while in the instant case the word “ accept-[171]*171eel ” does not appear on tbe contract, but the signature of Howel, the buyer of the cotton, does there appear, and the only reasonable construction of the contract is that the buyer, by signing his name at the bottom thereof, intended it as an acceptance of the other party’s offer to sell, and that it was só understood by both parties to the contract.

However, if it be conceded that the contract is ambiguous and uncertain as to whether the offer to sell was accepted by the plaintiff, it would be permissible to explain that ambiguity, and render certain the uncertainty, by parol evidence (Jones v. Fuller, 25 Ga. App. 89 (102 S. E. 550), audit is distinctly alleged by the plaintiff in his petition that he did accept the defendant’s offer to sell the cotton and so notified the latter.

From what has been said it follows that the petition set out a cause of action, and that the court erred in dismissing it on general demurrer.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.

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Luke, J.

(After stating the foregoing facts.) In the contract sued upon the language, “ I herewith confirm sale to you of 100 bales cotton,” clearly showed an offer to sell upon the-terms and at the time stipulated in the contract. Luke v. Livingston, 9 Ga. App. 116 (70 S. E. 596). The contract, being also signed by the buyer, showed on its face that the offer to sell had been accepted by him. It. thus became a mutually binding contract, valid under the statute of frauds, was not unilateral, and no tender of the agreed price prior to the date fixed for delivery was necessary. Terry v. International Cotton Co., 136 Ga. 187 (70 S. E. 1100). And in the instant case, the seller having notified the buyer that he refused to perform under the contract, a tender of the purchase-money by the latter at the date fixed for delivery was rendered unnecessary. In McGhee Cotton Co. v. Herrine, 10 Ga. App. 700 (74 S. E. 66), the contract (which was there held to be binding upon both parties) is on all fours with the one now under consideration, with the single exception that in the McGhee case the word “ accepted ” appeared at the bottom of the contract just above the signature of the McGhee Cotton Company, the buyer of the cotton in that case, while in the instant case the word “ accept-[171]*171eel ” does not appear on tbe contract, but the signature of Howel, the buyer of the cotton, does there appear, and the only reasonable construction of the contract is that the buyer, by signing his name at the bottom thereof, intended it as an acceptance of the other party’s offer to sell, and that it was só understood by both parties to the contract.

However, if it be conceded that the contract is ambiguous and uncertain as to whether the offer to sell was accepted by the plaintiff, it would be permissible to explain that ambiguity, and render certain the uncertainty, by parol evidence (Jones v. Fuller, 25 Ga. App. 89 (102 S. E. 550), audit is distinctly alleged by the plaintiff in his petition that he did accept the defendant’s offer to sell the cotton and so notified the latter.

From what has been said it follows that the petition set out a cause of action, and that the court erred in dismissing it on general demurrer.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.

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105 S.E. 716, 26 Ga. App. 168, 1921 Ga. App. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howel-v-kinney-gactapp-1921.

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