Miller v. Smith

65 S.E. 292, 6 Ga. App. 447, 1909 Ga. App. LEXIS 338

• Court: Court of Appeals of Georgia
• Decided: June 15, 1909
• Docket: 1336
• Status: Published

Opinions

Powell, J.

Smith sued Miller for the purchase-price of a number of sticks of piling which he alleged he had sold the defendant and the latter refused to accept. The case resulted in a verdict for the plaintiff. The defendant made a motion for a new trial, to the overruling of which he excepts. Reduced to their lowest terms, the grounds of the motion present substantially the bare question that the verdict is without evidence to support it. The price to be paid for the piling was more than $50. The defendant’s plea consisted of a categorical denial of the allegations of the petition, and did not raise the point that the alleged contract was unenforceable for lack of compliance with the terms of the statute of frauds. It appeared on the trial that the defendant had given the plaintiff a written order for 1,000 sticks of piling, and that the plaintiff had in writing accepted the order. The plaintiff contended that by a subsequent parol agreement this order had been enlarged so as to call for 600 additional sticks of piling. The defendant admitted making the written contract, and claimed that it had been fully performed. He denied the enlargement of the order.

1. A contract for the sale of 1,000 sticks of piling at the approximate price of $1.71 a stick is within the statute of frauds. Cason v. Cheely, 6 Ga. 554. “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 subsequently modified by a parol agreement.” Augusta So. Ry. Co. v. Smith, 106 Ga. 864 (33 S. E. 28). “The acceptance and receipt of merchandise of a greater value than fifty dollars; under an oral contract of sale, which is contemplated by the Civil Code, §2693, par. 7, as relieving the contract from the operation of the statute of frauds, must be such a transfer of the physical possession of the property as places the goods beyond the control of the vendor, and within the control of the vendee.” Tender and refusal to accept are not sufficient to take the case out of the statute. Brunswick Grocery Co. v. Lamar, 116 Ga. 1 (42 S. E. 366).

However, the defendant did not, so far as the record shows, make in the trial court the point that the oral contract enlarging the written order was unenforceable for lack of compliance with the statute of frauds. In this respect the case is very similar to that of Tift v. Wight, 113 Ga. 681 (39 S. E. 503). It is held there that the right to plead the statute of frauds is a personal privilege which may be waived, and that a waiver will result from a failure to present the point in the proper manner to the trial court. The defendant, having chosen to submit the question to the local jury as to whether he made the alleged oral contract, must abide their finding upon the question, though he might have prevented the question from being submitted to them, by making a timely objection that the alleged contract was unenforceable because it was not in writing.

2. There was sufficient evidence to justify the submission to the jury of the other question involved. However, the evidence was not sufficient to authorize their finding as to a portion of the verdict, but the trial judge required the unauthorized portion to be written off. This was proper, and cured the error. S. A. L. Ry. v. Randolph, 129 Ga. 796 (59 S. E. 1110); S., F. & W. Ry. Co. v. Harper, 70 Ga. 119; Brunswick Light Co. v. Gale, 91 Ga. 813, 821 (18 S. E. 11). Judgment affirmed.