Neal v. Hudgins , 23 Ga. App. 222 ( 1919 )

Luke, J.

Before a recovery may be had upon a contract for the sale of goods of the value of more than fifty dollars, the contract must be in writing, or there must be part performance or payment of earnest money, or some memorandum which is specific as to parties and terms, etc. The contract declared upon in this case is clearly within the statute of frauds. See Civil Code (1910), § 3223 (7); Oglesby Grocery Co. v. Williams Manufacturing Co., 112 Ga. 359 (37 S. E. 372) ; Sivell v. Hogan, 119 Ga. 167 (46 S. E. 67), and cases cited. The court did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.

The petition alleged: “Defendant is indebted to petitioner in the sum of $326.25, for that the said defendant did, on the —• day of-, 1916, execute to petitioner his contract for his delivery of certain cotton, and which he failed to do, thereby causing a breach of said contract, to the injury and damage of petitioner in the . sum mentioned above.” By amendment it was alleged: “The defendant wanted to sell plaintiff 9 bales of cotton at 12 cents per pound, each to weigh 500 pounds, to be delivered at Neal, Ga., between the first day of October and the 30th day of November, 1916, said cotton to grade ‘Atlanta Middling (4s).’ Plaintiff told défendant that he did not care to buy the cotton. Defendant then insisted that plaintiff sell said cotton for him. This the plaintiff agreed to do as an accommodation to the defendant, and this was to be done without any profit or compensation to the plaintiff at all, and in March or April, 1916, did sell said cotton to George W. Cavenaugh & Co. for 12 cents per pound. When said cotton was to be delivered by defendant, under his agreement with plaintiff, he failed and refused to deliver the same, and plaintiff, to comply with the contract he had made for defendant, was forced to buy on the market 9 bales of cotton, and had to pay for it 19-1/4 cents per pound, that being the market price for that grade of cotton at the time and place of delivery, to wit, Neal, Ga. By reason of defendant’s failure to comply with his said contract, plaintiff has been injured and damaged’ in the sum of $326.25, this being the difference between the price for which plaintiff sold said cotton for defendant and the market price that plaintiff had to pay for the same grade of cotton at the time and place of delivery.”

E. F. Dupree, for plaintiff. W. Y. Allen, for defendant.