2895.
2896.
HINES v. CURETON-COLE CO. YOUNG v. CURETON-COLE CO.
1. A writing in which one party agrees to sell to the other products at a time in the future is to be treated as a more offer, unless it appears to have been accepted by the other party. If the subject of the sale is more than $50 in value, acceptance by the person to whom the offer is made, must be evidenced in writing, or by some act sufficient to take the case cut of the statute of frauds. If the writing recites that a part of the, purchase-price has been paid, this, prima facie, 'takes the case out of the statute of frauds; but it may be shown by parol that this recital as lo payment is not true, Luke v. Livingston, 9 Ga. App. 116 (70 S. E. 21).
2. “Parol evidence is admissible to show that a written contract, which on its face and by its terms purports to relate to a lawful transaction, was in fact entered into as a wagering contract, and that the lawful form, was adopted as a guise to evade the law.” Roberts v. Arnall, 9 Ga. App. 328 (71 S. E. 590).
3. “If one party to a continuing contract, consisting of mutual obligations, renounces and repudiates it prior to the date fixed for performance. the other party is at liberty either to immediately treat such renunciation as a breach of the contract and sue for damages sustained therefrom, or to treat the contract as still binding, and wait until the time arrives for its performance, in order to give the party who has repudiated the contract an opportunity to comply with its terms. If he adopts the latter course, and at the time fixed for performance demands compliance on the part of the other party, his right of action for a broach depends on whether or not such compliance is then made.” Ford v. Lawson, 133 Ga. 237. However, if a contract of sale rests in parol only, the parties may orally make it a part of the agreement that the seller shall have the right to make what is in effect an anticipatory breach, and to require the buyer to protect himself, as of the date thereof, from losses by reason of a subsequent rise in the market.
Decided September 30, 1911.
Action on contract; from city court of Newnan — Judge Post. July 29, 1910.
Hall Jones, for plaintiffs in error. IF. C. Wright, contra.
Russell, J.
The syllabus and the cases therein cited state and settle the points involved in both the cases here before us. In the Hines case the propositions stated in the first two paragraphs of the syllabus are controlling, and show that the court erred in striking the pleas which set up the defenses indicated in these propositions. The proposition stated in the third paragraph of the syllabus controls also another defense presented in the Hines case;; the court correctly struck the defense of anticipatory breach will!*779ink damage, so far as relates to the written contract sued.on, and erred in striking it so far as it relates to the other (the oral) contract. In the Young case the facts pleaded are not sufficient to make the defenses outlined in paragraphs one and two of the sjilabus available; and it follows, from the first proposition stated in the third paragraph of the syllabus, that the defense offered as to the anticipatory breach was not valid.
Judgment reversed in the Hines case. Judgment affirmed in the Young case.