Southern Wood Preserving Co. v. Resaca Lumber Co. , 29 Ga. App. 501 ( 1923 )

Bell, J.

The plaintiff in error sued for the breach of an alleged contract for the sale of lumber amounting to more than $50. The petition as amended showed that the plaintiff, on or about October 15,1919, placed with the defendant a written order for the lumber, containing a statement of the quantity and dimensions, and specifications as to kind and quality; that the order was at first accepted by the defendant verbally, but that there had been a part performance as indicated in the third division of the syllabus, and also that the defendant had “ recognized and ratified ” the " contract by a letter,” a copy of which is attached as an exhibit to the petition. The defendant, by demurrer, invoked the statute of frauds, and the plaintiff complains of the action of the court in sustaining this demurrer.

■ The deliveries relied on as part performance were not “ within the time stipulated for delivery,” and therefore the case of Columbus Crate Co. v. Evans, 130 Ga. 432 (60 S. E. 1065), cited by the plaintiff in error, is not applicable. Neither is it possible to uphold the petition upon the authority of Capital City Brick Co. v. Atlanta Ice & Coal Co., 5 Ga. App. 436 (63 S. E. 562), for the reason that the letter is not coextensive with the terms of the alleged contract. The demurrer was properly sustained.

Judgment affirmed.

Jenkins, F. J., and Stephens, J., concur.