
    9636.
    Port Wentworth Lumber Company v. McLean.
    Decided October 22, 1918.
    ■ Complaint; from city court of Savannah—Judge Freeman. March 4, 1918. . ' .
   Bloodworth,. J.

The demurrer to the petition was properly overruled. “The defense of statute of frauds can be raised by demurrer to the petition only when the facts alleged in the. petition affirmatively show that the contract is oral and that there has not been suchiperformanee as to raise an exception.” . Marks v. Talmadge, 8 Ga. App. 557 (69 S. E. 1131); Kinney v. Kinney, 20 Ga. App. 816 (93 S. E. 496).

Judgment affirmed.

Broyles, P. J., and. Harwell, J., concur.

The petition alleges that the Port Wentworth Lumber Company is indebted to the plaintiff in the sum of $125' on an account, a copy of which is attached to. the petition. The account consists of two items, dated November 28, 1916, as follows: “2 timber cars complete, $100; 125 feet of steel loading chain, $25.” The demurrer was on the following grounds: “ (1) The petition sets forth no cause of action and is insufficient in law. (2) The petition fails to show when, where, or through whom the alleged account was contracted on the part of the defendant. (3) The petition fails to show the terms or conditions of the alleged contract of sale, and fails to show when the alleged indebtedness was to be paid. (4) The petition fails to show whether the alleged sale was made orally or in writing.” (5) The petition shows no writing signed by or in behalf of the defendant, and, being an account for the sale of goods and merchandise to the amount of more than $50, the sale is unenforceable under 'the statute of frauds, there being no allegation that the defendant accepted and actually received the goods or a part thereof,'or gave something to bind the bargain or in part payment.

Hitch & Denmark, for plaintiff in error.

Seabroolc & Kennedy, contra.  