Capital City Brick Co. v. Atlanta Ice & Coal Co. , 5 Ga. App. 436 ( 1909 )

Powell, J.

(After stating the foregoing facts.)

We have set forth the foregoing letters at some length because the ease here largely turns upon the question as to whether they are sufficient, under the statute of frauds, to hold the brick company to the alleged contract to deliver to the ice company 500,000 bricks. It will be noticed, in the letters written by the ice company, the terms of the contract are definitely stated; nowhere-does the brick company deny that such a contract was really made. Indeed, a close examination of the correspondence will show that in several instances the brick company clearly recognized that such, a contract had been made, though nowhere in the letters is there any direct agreement on their part to abide the contract. In one-of the letters there is a practical admission by the brick company that the contract asserted by the ice company had been made, coupled with an attempt to repudiate it because of lack of compliance with what the writer evidently thought were the terms of the.statute of frauds — an admission of being morally bound by the-contract, accompanied with a claim of not being legaüy bound, because the agreement was not in writing. The very failure of the-brick company to deny that the contract was made as the ice company contended is, under the nature of the correspondence and the: manner in which that contract is asserted by the ice company throughout the correspondence, practically an admission that the-agreement was made as claimed. Civil Code, §5155; Bray v. Gunn, 53 Ga. 145; McLendon v. Wilson, 52 Ga. 42. We have but little difficulty in holding that the course of the correspondence, by the-signed admission of the brick company, evidenced the agreement alleged by the ice company, though the former, throughout the correspondence, sought to repudiate the old contract and to make a. new one. The statute of frauds does not contemplate that the contract between the parties shall necessarily be made originally in uniting, but requires only that, as against the party to be charged,, it shall be evidenced sooner or later by a writing, signed by him or-by' some person legally authorized to act in his behalf. It is not: necessary that the writing by which the contract is to be evidenced should have been executed simultaneously with the making of the-contract; any writing, contemporaneous or subsequent, in which the party to be charged admits, over his signature, all the terms, of the contract insisted .on by the opposite party, is sufficient. "The-moment written evidence of the contract under his hand, in whatever form, exists, the contract is taken out of the statute, even though such an admission is in the form of a letter repudiating thecontraet.” Wood on Statute of Frauds, §334. To the same effect see Buxton v. Rust, L. R. 7 Exch. 279 (see also page 1 of the same, volume); Bailey v. Sweeting, 9 C. B. (N. S.) 843, 30 L. J. (C. P.) 150; Wilkinson v. Evans, L. R. 1 C. P. 407. The only exception to this rule, so far as we are aware, is where the defendant in his. pleadings admits the contract, but at the same time claims the benefit of the statute. See Hollingshead v. McKenzie, 8 Ga. 459; Douglass v. Bunn, 110 Ga. 165 (35 S. E. 339). Our Civil Code, §4037, would seem to negative even this exception which in the 'cases just, cited has been recognized by the courts. The requisite written evidence may be supplied from a letter written by the party to be-charged (Foster v. Leeper, 29 Ga. 294; Georgia Refining Co. v. Augusta Oil Co., 74 Ga. 508; Pitcher v. Lowe, 95 Ga. 426, 22 S. E. 678), or from a course of correspondence (Erwin v. Harris, 87 Ga. 333, 13 S. E. 513). Indeed, any signed writing or series of writings internally connected, intelligible without parol aid, and showing or admitting an agreement coextensive with the stipulations of the alleged contract, is sufficient. North v. Mendel, 73 Ga. 400 (54 Am. R. 879); Lester v. Heidt, 86 Ga. 228 (12 S. E. 214, 10 L. R. A. 108). If in a series of writings the party to be charged definitely admits a previous agreement complete in all the usual elements of a contract, this agreement will be enforced, though the minds of the parties do not meet upon the new or additional, things proposed or discussed in the course of the correspondence. For where the statements made by the party in the correspondence are used, not to create a contract, but merely to evidence one already made and fully complete, save only as to the formality of written evidence, the requirement of a present mutuality, so far as these writings are concerned, is of no applicability. Contracts, must not be unilateral; admissions are, in a sense, usually so. Compare Austin v. Long, 1 Ga. App. 258 (57 S. E. 964).

2. The plaintiff in error complains that the judge did not construe the correspondence, but left it to the jury to say whether the letters were sufficient to show the contract claimed by the ice company. As a general rule, it may be said that “the question whether or not certain letters or telegrams or both constitute a contract is one to be determined by the court, and it is error to submit it to the jury.” 9 Cyc. 776, and cit. Whether this rule applies with full force where writings are introduced, not as the original embodiment of the contract, itself, but merely as evidentiary of a contract already made, it is not necessary for us to decide; for if the judge himself in the present case had construed the writings, instead of submitting them to the jury, he should have construed them adversely to the contention of the complaining party, just as the jury seems to have done. “Although it is the duty of the trial judge to construe a written contract, still if instead of doing so he submits the same to the jury for construction, the judgment will not be reversed therefor, where it appears that the proper construction of such contract would have been adverse to the contention of the complaining party.” Moss Manufacturing Co. v. Carolina Portland Cement Co., 1 Ga. App. 232 (57 S. E. 914); Main v. Simmons, 2 Ga. App. 821 (59 S. E. 85).

3. Over the objection of the plaintiff the court allowed the president of the defendant ice company to testify as to his having made the oral contract for the 500,000 bricks. Since the defendant contended that the contract was taken out of the statute of frauds not- only by the letters, but also by part performance under it, through the delivery of a portion of the quantity of brick involved, this evidence was admissible. It is true that the plaintiff’s testimony tended to show that the bricks sued for were not delivered under the parol contract set up by the defendant; but since there was testimony to the contrary, the court properly allowed this testimony in support of the theory of the defendant’s case.

4. In charging upon the measure of damages, the court made some palpable verbal slips. They were so obviously slips' of the tongue as hardly to have been misleading to the jury. However, all this becomes immaterial, for the verdict of the jury was in a smaller- amount against the plaintiff than the evidence demanded. In -other words, if the court had directed the verdict rendered, we would not have reversed the judgment upon the complaint of the plaintiff in error. If the letters show a valid contract for the 500,000 bricks, as we are here holding they do, the verdict is even more favorable to the brick company than it had any right to ask.

Judgment affirmed.