Empire Talc & Lumber Co. v. Goble

Wade, C. J.

Under the facts -developed in this case the court did not err in awarding a nonsuit. The application by the plaintiff of the sum paid the defendant as 'part of the purchase-price of the lumber in .question to an entirely different contract between the parties, by and with the consent of the defendant, amounted to a withdrawal or rescission of the partial payment made under «the parol agreement, and rendered the contract for the sale of - the lumber (valued at more than $5.0) unenforceable under the statute of frauds, to which it constituted no exception. In the case of Ray v. Schmidt, 7 Ga. App. 380 (3) (66 S. E. 1035), cited-by counsel for the plaintiff, not only had the timber been inspected, measured, marked, and branded by both seller and purchaser, but the agreed price had been fully paid. Here, before the action of trover was brought, the partial payment, made on the agreed price of the timber in question, which had been “checked” but not' delivered or accepted, was withdrawn by the vendee and applied to the purchase-price of other timber from the same defendant under a different contract.

Judgment affirmed.

Jenhins and Luke, JJ., concur.