Augusta Southern R. Co. v. Smith & Kilby Co.

• Decision Date: 18 April 1899
• Citation: 33 S.E. 28,106 Ga. 864
• Parties: AUGUSTA SOUTHERN R. CO. v. SMITH & KILBY CO.
• Court: Georgia Supreme Court

33 S.E. 28

106 Ga. 864

AUGUSTA SOUTHERN R. CO. v. SMITH & KILBY CO.

Supreme Court of Georgia

April 18, 1899

Syllabus by the Court.

1. A contract which must, under the statute of frauds, be in writing, and which accordingly is put in writing and duly executed, cannot be subsequently modified by a parol agreement.

2. Mere nonaction is not performance, either partial or complete, and will not, therefore, take a parol contract out of the statute of frauds.

Error from city court of Richmond; W. F. Eve, Judge.

Action by the Augusta Southern Railroad Company against the Smith & Kilby Company. From an order sustaining a demurrer to the complaint, plaintiff brings error. Affirmed.

Leonard Phinizy and Boykin Wright, for plaintiff in error.

Jos. B. & Bryan Cumming and J. R. Lamar, for defendant in error.

LUMPKIN P.J.

Although the bill of exceptions complains of various rulings made by the trial court, this case is really controlled by a determination of two only of the questions involved. The following statement presents in condensed form all that is material to an understanding of these questions and of our decision thereon: The Augusta Southern Railroad Company brought an action against the Smith & Kilby Company for an alleged breach of a written contract, which would, had the same been in parol, have been void under the statute of frauds. Finding itself unable to prove facts entitling it to a recovery upon its original petition, the plaintiff filed certain amendments thereto; alleging that after the making of the written contract the same had, in material respects (the particulars concerning which were set forth), been changed and modified by a parol agreement between the parties. Treating the amended contract as a whole, it was still one which would have been void under the statute of frauds, had it rested entirely in parol. After these amendments to the petition were allowed, the defendant, by a demurrer thereto made the point that, inasmuch as the contract originally declared upon was one which, under the statute, would not have been good but for the fact that it was in writing, parol modifications of it materially changing its terms could not lawfully be alleged or proved. The demurrer was sustained and the plaintiff contends that this was error. This makes the first question to be disposed of here. The petition, as amended, alleged facts upon which the plaintiff bases the contention that, relying upon the defendant's complying in good faith with the terms of the parol agreement, it postponed the doing of certain essential things beyond the time within which, under the original written contract, it had agreed to do the same, but that, having offered to perform all of its undertakings thereto relating within the time limited by the modified contract, the statute of frauds could not be justly invoked against it. In other words, the plaintiff insists that there has been such a part performance by it of the subsequent oral agreement as should operate to take the case out of the statute.

1. It is not now open to serious question that, "if it were not necessary in the first instance to have the contract reduced into writing, parol evidence may be received of conversations and circumstances subsequent to the time of making the agreement, to show that the parties, upon sufficient consideration, consented afterwards to vary the contract or add some new stipulation." Rogers v Atkinson, 1 Ga. 12. Indeed, this doctrine is too well settled to require further discussion or citation of authority. But it by no means follows that a contract within the statute of frauds, and therefore required to be in writing in the first instance, can subsequently be modified or changed by parol. On the contrary, the language just quoted clearly intimates that this is not permissible. After stating the common-law rule that simple contracts, though reduced to writing, may be annulled or modified by a "fresh parol agreement," Mr. Benjamin says "But this principle of the common law is not applicable to a contract for the sale of goods under the statute of frauds. No verbal agreement to abandon it in part, or to add to or omit or modify any of its terms, is admissible." 1 Benj. Sales, § 214. We might without difficulty multiply citations on this line, but it is unnecessary, for this court has in distinct terms held that contracts which the law requires to be in writing cannot be altered by subsequent parol agreements. Thus, in Simonton v. Insurance Co., 51 Ga. 76, it was held that as contracts of insurance are, by express statute, required to be in writing, subsequent agreements to change the terms of such contracts must likewise be in writing. On page 80, McCay, J., said: "A written contract not required by law to be in writing might always be, subsequent to its making, altered or modified by a new parol contract based on a consideration. But, if the law required the insurance contract to be written, it would seem to follow, as a matter of course, that any alteration of it must also be in writing, since at last every alteration is a new insurance contract, which, by the express terms of the statute, must be in writing." Again, in Mitchell v....