Samuel D. Linton & Co. v. Williams , 25 Ga. 391 ( 1858 )

By the Court.

Lumpkin, J.

delivering the opinion.

The return to the certiorari shows, that on the 7th day off September, 1853, a negotiation, for the sale and purchase of flour, was entered into by the parties, through their respective agents, which resulted in the delivery to the plaintiff, by the defendant, of the following note of sale:

C. A. WILLIAMS,

To S. D. LINTON & CO. Dr.

To 100 barrels Sup. Flour, at $5.50, - - $550.00

to be delivered at any time during'the winter when wanted, from this date. Augusta, Sept., 553.

S. D. LINTON & CO., Per MEAD.

That on the 31st of January, 1854, plaintiffs called on defendants and tendered in gold, the full amount of #550, and demanded the 100 barrels of flour, which were refused to be delivered. To recover damages, for a failure or refusal to perform their contract, this action is brought against the defendants ; and at the trial, the above facts were presented to the jury, with the additional proof of the value of flourat Augusta, in the winter of 1853 — 54. The City Court held, that the evidence was insufficient to entitle the plaintiff to a verdict, who was, on motion of counsel for defendants, compelled to submit to a nonsuit. Was this a nude pact, and. were not the defendants bound by their contract ? Judge Holt reversed the decision of the Court below. He delivered the following opinion:

“ This Court cannot perceive how a contract, for the sale of one hundred barrels of flour, for five hundred and fifty dollars, can, with much propriety, be called a void agreement. The commodity and the price are both fully stated. It was certainly within the power of the contracting parties to stipulate the time of delivery; and this they have done with sufficient certainty. The plaintiff might, by the terms of the note or memorandum, postpone the delivery to the end of the winter. He must then receive and pay. Neither party had the power to repudiate. If both parties had signed this paper, it might have seemed plainer, that both were bound by it. But the liability of neither would have been thereby increased. One signed, and the other accepted it. And there is in it a perfect mutuality of undertakings.”

In confirmation of Judge Holt’s opinion, we would add, that it is laid down by Mr. Greenleaf, that it is not necessary that the agreement or memorandum, to be binding, should be signed by both parties, or that both be legally bound to the performance; for the statute only requires that it be signed by the party to be charged therewith; that is, by the defendants, against whom the performance or damages are demanded. Greenleaf on Ev. vol. sec.268. And in support of this proposition, he cites the case of Allen vs. Bennett, 3 Taunton, 169 ; Shirley vs. Shirley, 7 Blackford, 452; Davis vs. Shields, 26 Wendell, 341; which fully sustain the doctrine.

Chancellor Kent maintains the same position. He says, the signing of the agreement by one party only, is sufficient, provided it be the party sought to be charged. For he is es-topped by his signature from denying, that the contract was validly executed, though the paper be not signed by the other paity, who sues for a performance. 3 Kent’s Com. 510, and cases there cited. And Lord Manners, in 2 Ball & Beatty, 370; Sir William Grant, in 3 Ves. and Beam. 192; Sir William Plummer in 2 Jac. and Walls. 426; Ballard vs. Walker, 3 Johns. Cas. 60; Selon vs. Slade, ib. 265 ; Clayson vs. Bailey, 14 Johns. 487; Douglass vs. Stears, 2 Nott & McCord, 207; Palmer vs. Scott, 1 Buss, and Milne, 391; Champion vs. Plunar, 1 New Rep. 252; Egerton vs. Mathews, 6 East. 307; and Sanderson vs. Jackson, 2 Boss. & Pull. 238; Ross on Contracts, 85; 2 Boss. & Pull. 447; 1 East. 203; 23 Pickering, 400; 2 Hall, 405; 4 Iredell, 257; 3 Humphrey, 19; 5 Ga.Rep. 171 ; and 1 Kelly, 220, are all authorities to the same point.

In this case the contract is full and complete. All the terms of it can be collected from the writing. The name of Williams does appear in it. True, it is put there by the defendants, but Williams, by accepting the contract, as thus written, ratifies the use of his name. Under these circumstances, the signature, in writing, by Linton, thereby binding himself, is a good consideration for the promise on the part of Williams, to pay the price stipulated for the flour. He might call for it at any time during the winter. He was bound to receive the flour, and pay for it, by the end of the winter.

We hold, therefore, that there was not only a sufficient consideration for the promise, but that the contract, as executed, was not within the statute of frauds.

In Allen vs. Bennett, it was said by one of the Judges’ that the statute was chiefly made for the benefit of buyers.

Judgment affirmed.