Albany Peanut Co. v. Euclid Candy Co.

JONES, J.,

pro tem.

This action went to trial on June 19, 1935, upon the second amended complaint of the plaintiff which contained six separate causes of action. The first two of these various causes of action were directed to the appellant here, and the remaining counts to other defendants. Upon the conclusion of plaintiff’s case a nonsuit was granted as to all the causes of action except the first, and as to this cause of action the motion for a nonsuit was denied. The respondent at that time made a motion to amend its complaint to conform to the proof, which said motion was granted.

The first cause of action is for the reasonable value of goods sold and delivered. The amendment to its complaint filed by the plaintiff sets up what is denominated a seventh and separate cause'of action, and alleges an oral contract to buy, a breach thereof, a resulting damage in the sum of $3,000, and an estoppel to rely on the defense that the contract was not in writing. The answer to this amended pleading denies all the material allegations thereof, and sets up the statute of frauds as a special defense. The action came up again for hearing on November 27, 193'6, at which time stipulations were made that certain persons would testify to particular facts if called as witnesses, after which the plaintiff again rested its case and aiiother motion for a nonsuit was made. This motion was likewise denied.

The findings made by the trial court follow generally the allegations of the complaint as amended and judgment was

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entered for the plaintiff in the sum of $3,000, together with interest and costs. From this judgment the appeal has been taken.

The respondent is a Virginia corporation engaged in the business of cleaning and shelling peanuts at Albany, Georgia. On June 3,1931, it communicated with Latimer & Carmichael Co., brokers at Atlanta, Georgia, and requested them to offer to the trade four carloads of No. 1 Spanish shelled peanuts at a price of 5% cents per pound f. o. b. Albany, Georgia, two cars to be delivered during the last half of October, and two cars the last half of November. Latimer & Carmichael Co. in turn telegraphed Parrott & Co., brokers in San Francisco, to make a similar offer, subject to confirmation, of the same amount of peanuts at the same price for the same delivery. C. J. Nouges, a representative of Parrott & Co., called on J. W. McKey, the general manager of the appellant and made him acquainted with the offer. McKey stated at that time that he would take the four carloads of peanuts provided that a thirty cent freight rate on them would be guaranteed. Latimer & Carmichael Co. refused to guarantee the freight rate and it dods not appear that such a rate was ever guaranteed to the appellant by anyone. On June 1,5th, Parrott & Co. mailed to the appellant a proposed contract in writing which had been forwarded to them by Latimer & Carmichael Co. and which was signed by the Albany Peanut Company. The appellant was requested by Parrott & Co. to sign this contract and return it. On September 19th the appellant did return the proposed contract to Parrott & Co., but without its signature and with the statement that it was not satisfactory. At various times between June 15th and the 19th of September, Nouges, representing Parrott & Co., called on McKey, manager of The Euclid Candy Co., to get his signature to the contract, but was never able to do so. The following testimony of the witness Nouges details the negotiations between Parrott & Co. and the appellant from the time the proposed agreement was mailed to appellant until it was returned unsigned on the 19th of September: