
    16531.
    Nellis & Company et al. v. Houser.
    Frauds, Statute of, 27 O. J. p. 249, n. 88; p. 385, n. 25.
    Decided February 13, 1926.
    Action on contract; from Houston superior court—Judge Malcolm D. Jones. May 18, 1925.
    
      Brown & Brown, for plaintiffs in error. G. L. Shepard, contra.
   Stephens, J.

1. This being a suit by the seller against the purchaser for an alleged breach of an oral contract for the sale of three carloads of peaches which the defendant had refused to accept after one car had been loaded and tendered to him, to which the defendant pleaded a general denial and also that the contract was within the statute of frauds and unenforeible, and there being evidence to the effect that, according to the terms of the contract, the peaches were to be of different varieties,—as Hiley Belles and Georgia Belles (there being an issue between the parties as to the proportion of such varieties),—and that the peaches were inspected at the packing house while the first car was being loaded, and were also inspected after they were placed in the car by an authorized agent of the purchaser, the inference was authorized that by the terms of the contract the peaches were packed and the car was loaded in accordance with the wishes of the purchaser, and that the seller, in packing the peaches and loading them into the car, did so in accordance with the provisions of the Contract. The jury was therefore authorized to find that the contract had been partially performed by the seller, and that, from the nature of the contract and from the perishable nature of the commodity contracted for, it would have been a fraud upon the seller by the purchaser if the purchaser were not compelled to perform, and that therefore the contract, which was not in writing, was taken out of the statute of frauds. Civil Code (1910), § 3223 (3).

2. The evidence authorized the verdict found for the plaintiff.

3. See, in this connection, Nellis v. Houser, 33 Ga. App. 266 (125 S. E. 790).

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.  