Wilkerson v. Patton Sash, Door & Building Co. , 10 Ga. App. 697 ( 1912 )

Hill, C. J.

1. Where one party to an alleged contract for “the sale of goods, wares, or merchandise” relies upon a written memorandum, to show compliance with the statute of frauds, the memorandum must show all the terms of the contract, and that both parties thereto assented to those terms. Borum v. Swift, 125 Ga. 202 (53 S. E. 698) ; Clark on Contracts, 83.

2. An acceptance of a written offer relating to a subject-matter within the statute of frauds must itself be in writing, in order to make a contract mutually binding. Pope v. Graniteville Mfg. Co., 1 Ga. App. 176 (57 S. E. 949).

Decided March 6, 1912.

Action on contract; from city court of Floyd county — Judge Reece.

September 15, 1911. W. J. Nunnally, for plaintiff. Lipscomb, Willingham & Wright, Nathan Harris, for defendant.

3. Tlie alleged contract on which the suit is based consists of a written proposal or offer to buy certain described personal property at a specified price, and the allegations of the petition show that this written offer was withdrawn before acceptance or part performance by the proposed seller. The offer, therefore, never became a complete contract, and the court properly dismissed the petition on demurrer. Oak City Co. v. Kennedy Co., 4 Ga. App. 344 (61 S. E. 499) ; Sivell v. Hogan, 119 Ga. 284 (46 S. E. 67) ; 9 Cyc. 284. Judgment affirmed,.