Freeman v. Baker

• Decision Date: 11 September 1978
• Docket Number: No. 56216,56216
• Citation: 248 S.E.2d 298,147 Ga.App. 168
• Parties: FREEMAN et al. v. BAKER.
• Court: Georgia Court of Appeals

Page 298

248 S.E.2d 298

147 Ga.App. 168

FREEMAN et al. v. BAKER.

No. 56216.

Court of Appeals of Georgia.

Argued July 11, 1978.

Decided Sept. 11, 1978.

Perry O. Lemmons, Atlanta, for appellants.

Jack B. McNeil, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

The plaintiffs (now appellants) brought an action seeking to recover damages for the defendant's (now appellee) failure to comply with the terms of a contract for the sale of realty. The defendant answered, denying the material allegations of the complaint, and setting forth the defense that the action was barred by the Statute of Frauds since the contract in question had never been signed by either of the parties. The defendant moved for summary judgment in its favor and both sides introduced affidavits and supporting documents with regard thereto. After a hearing, the trial judge entered an order granting the defendant's motion for summary judgment. Thereupon appeal was brought to this court by the plaintiffs. Held :

1. The gravamen of the complaint filed by the plaintiffs was that the defendant failed and refused to consummate the closing of the sales contract. The damages sought were the expenses incurred by the plaintiffs in their efforts to close.

The expenses were for a survey of the land, for attorney fees incurred in an endeavor to get the defendant to close and for loss of interest earnings on the down payment and purchase money note that would have been earned from the closing date.

The contract in question contained in its heading the date "December, 1976." It contained a description of the property, the usual terms and conditions, and special stipulations. Among those stipulations were that the sale shall be closed on or before December 30, 1976. The contract was unsigned.

The plaintiffs contend that the lack of signature was supplied by a letter written by the defendant on February 28, 1977. This letter was written by the defendant to his attorney and a copy thereof sent to the attorney for the plaintiffs. The first sentence of the letter reads "During the month of November, 1976, I agreed to purchase a piece of farmland, from Mr. Freeman of Henry County (Georgia). It was agreed, that the deal would be closed on or before December 31, 1976." The plaintiff urges the rule that "the requisite written evidence may be supplied from a letter written by the party to be charged . . . or from a course of correspondence." Capital City Brick Co. v. Atlanta Etc. Ice Co., 5 Ga.App. 436, 443, 63 S.E. 562, 565.

The infirmity of the position taken by the plaintiffs is revealed by the very case cited. In Capital City Brick Co. v. Atlanta Etc. Ice Co., supra, p. 443, 63 S.E. at 565 it is pointed out "Any signed writing or series of writings internally connected, Intelligible without parol aid, and showing or Admitting an agreement coextensive with the stipulations of the alleged contract, is sufficient." (Emphasis supplied.) In North & Co. v. Mendel & Brother, 73 Ga. 400, the Supreme Court held that several papers might form such a memorandum as would satisfy the Statute of Frauds provided the contents of the signed paper make reference to the other written paper as to enable the court to construe the whole of them together. "If, however, it be necessary to adduce parol evidence, in order to connect a signed paper with others unsigned, by reason of the absence of any internal evidence in the signed paper to show a reference to or connection with the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain." Accord Lester v. Heidt, 86 Ga. 226, 228, 12 S.E. 214. Thus, two writings, one signed and the other unsigned, cannot be correlated by parol evidence.

In this case the letter which was signed makes reference to an agreement of November, 1976 and a contract with a closing date of December 31, 1976. Without parol evidence, there is no way to connect this statement with an unsigned agreement dated "December, 1976," and providing a closing date of December 30, 1976. In short, there is nothing which shows that the defendant was referring to the unsigned contract and no key by...