Schreiber v. Wolf

113 S.E. 53, 28 Ga. App. 817, 1922 Ga. App. LEXIS 889

• Court: Court of Appeals of Georgia
• Decided: July 24, 1922
• Docket: 13168
• Status: Published

Opinion

Jenkins, P. J.

1. “Contracts for goods not in esse at the time, and of a peculiar character so as to be unsuited to the general market, to be made by the work and labor and with the material of the vendor, at the instance of the purchaser, are not within the . . statute of frauds.” Cason v. Cheely, 6 Ga. 554.

2. The plea does not set up nor does the evidence disclose any breach by the defendant of the executorj'- contract prior to the delivery of the goods sold, such as would preclude the vendor from bringing an action on open account for the purchase price. Castlen v. Marshburn, 8 Ga. (3), 406 (69 S. E. 317). The ease, therefore, cannot be brought within the rule announced in Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (4) (56 S. E. 1030); and the judge did not err in directing a verdict for the plaintiff.

Decided July 24, 1922.

Complaint; from city court of Brunswick — Judge Butts. December 17, 1921.

Isaac & Isaac, for plaintiffs in error. W. C. Little, contra.

Judgment affirmed.

Stephens, J., concurs.