Holliday v. Pope
| Decision Date | 14 April 1949 |
| Docket Number | 16548. |
| Citation | 53 S.E.2d 350,205 Ga. 301 |
| Parties | HOLLIDAY v. POPE. |
| Court | Georgia Supreme Court |
Rehearing Denied May 12, 1949.
Syllabus by the Court.
1. Specific performance is not a remedy which either party to an alleged contract can demand as a matter of absolute right and will not in a given case be granted unless strictly equitable and just; and a court will be justified in refusing a decree of specific performance upon inadequacy of price or any other fact showing the contract to be unfair or unjust or against good conscience. In order to authorize specific performance of a contract, its terms must be clear, distinct and definite.
(a) While it is the general rule that to enforce a contract under which one of the parties agrees that, in return for services to be rendered by the other, he will make a will devising property to such other person, the petition must allege the value of the services to be rendered and also the value of the property to be willed, so as to show that the contract sought to be enforced is not unfair or unjust or against good conscience, exceptions exist in cases where one goes into the home of a near relative agreeing to nurse and give the other personal, affectionate, and considerate attention such as could not be readily procured elsewhere and where the value of such services could not be readily computed in money.
(b) The petition as amended, seeking specific performance of an alleged oral contract between the petitioner and the defendant executor's testatrix, whereby in consideration of services to be rendered by the petitioner to the testatrix the latter promised to make a will leaving to the petitioner described real estate, and setting forth full performance by the petitioner of the agreement and a breach by the testatrix, set forth a cause of action for specific performance.
(c) Under the allegations of the petition as amended as to the defendant executor not being under bond, his insolvency, and his liability for rents and profits from the property in question since February 23, 1945, and that unless a receiver be appointed to take charge of such property the petitioner would suffer irreparable loss, the petitioner would be entitled to the appointment of a receiver and an accounting in equity, since such full relief could not be afforded by the court of ordinary in which the will of the testatrix had been probated in common form and in which administration was pending.
2. The special demurrers are without merit.
Jo James Pope filed in the Superior Court of Fulton County, Georgia, and equitable petition against George Holliday, individually and as executor under the will of Rebecca Smith. The petition was twice amended and, after one paragraph had been stricken on demurrer, the petition as finally amended alleged: The petitioner is the grandson of Rebecca Smith, deceased, who departed this life on February 20, 1945, while a resident of Fulton Couny. The defendant was not related to her by blood or marriage and was not a creditor of her. At the time of her death she was seized and possessed of described property at 977 Smith Street in the City of Atlanta, Georgia. About 1930 she entered into a verbal contract with the petitioner to will him the said real estate in consideration of his agreement to make his home with her and render her such service and assistance from time to time as she required. In reliance upon the said agreement, the petitioner did make his home with her until he married. In further reliance upon the said agreement, the petitioner rendered her the service and assistance that she required.
By an amendment on April 25, 1947, it was alleged that the service and assistance required by her and furnished by the petitioner and accepted by her was as follows: He waited on her when she was ill by handing her water, medicine, food and whatever she requested, and calling a doctor when she wanted one, going to the store and making purchases for her, bringing in coal, building fires, sweeping the floors, washing the dishes, making the beds, running errands of whatever kind she directed, sometimes helping her cook meals and after he got old enough to work he obtained employment wherever he could and did whatever he could for such wages as he was able to obtain and used the same to buy clothes, food, kindling, coal, medicine, and other household and personal necessities. As he grew older and earned more money, he gave her money in varying amounts at irregular times up to the time of her death, the amounts ranging from $1 or $2 to $15 and $20 at the time, the monthly amount at the time of her death being approximately $15 regularly. After he married and moved out of the home of his grandmother, he sent money as she requested it for her needs, and from time to time she wrote him for money for the purpose of painting the house, paying labor, and buying paint, and for the purpose of buying shoes, clothes and food, medicines and for physicians to treat her, and the petitioner sent her the money as requested. She depended on him to provide for, care for, and protect her, and recognized him as if he were her own child and looked to him in the same manner, and repeatedly recognized and acknowledged, affirming and reaffirming, her agreement that he should have all of her property at her death. On one occasion, when writing the petitioner for money with which to pay for painting and repairing the property, she reaffirmed the contract between her and the petitioner that at her death all of the property would become the property of the petitioner, and that he, therefore, should see that the property was protected, preserved, and kept up, not one house but both houses, and he complied with this request. One postoffice money order for $15 was in the mail from the petitioner to his grandmother at the time of her death, the same having been issued February 19, 1945, and mailed on that date from the petitioner in Florida to her in Atlanta, the same being represented by postoffice money order receipt number 297285. The petitioner was engaged in national defense work at the time of her death, and had been for a long time prior thereto, and his employment carried him to Florida where it was impossible for him to visit and be with his grandmother as much as desired, but he was subject to the Selective Service Draft law and desired to remain out of military service as long as he legitimately could, and to do this required that he be and remain with a national defense activity actually working to promote the national defense in some critical employment. Because the Selective Service Draft regulation of the draft boards made employees quitting defense jobs subject to the draft and immediate induction into military service, the petitioner was afraid to quit his employment and try to get other employment in Atlanta. He gave his grandmother $60 to paint the house in 1943, but it cost only $45. He purchased two tons of coal for her each winter while he was living in the house with her, and after that he kept the house in repair, paid the taxes, and painted the house each year. Until her death the petitioner purchased his grandmother clothing for spring, summer, and winter, and ever since he was been grown he provided every necessity for her and urged her to quit work, but she insisted on working as long as she could. He has been working with his grandmother since he was 9 years old. She was taking in washing and ironing, and he helped her by bringing wood and putting fire under the washpot and carrying the clothes and hanging them out and actually doing some of the washing with his own hands. After he got old enough to work he was employed at the Terminal Station, Davison-Paxon Co., Atlanta Mattress Company, Rogers grocery store at 933 McDaniel Street, and he was a delivery boy at several drug stores. He worked for $90 a month at a warehouse in Atlanta, and of this amount $25 went to his grandmother every two weeks. When he went to Florida he had his baby sister stay with his grandmother in 1943 from February 7 until August 15, and then had his brother stay with her in 1944 until 1945. The petitioner's wife lived with his grandmother after he went to Florida until he married his wife and sent for her to join him in Florida. Each time his grandmother would get ill the petitioner sent his wife to stay with her and wait on her until she recovered. After the petitioner went to Florida in the war defense work, he returned several times to Atlanta to see how his grandmother was getting along and planned to return to Atlanta for good as soon as the war was over, June 1, 1945, in accordance with arrangements between him and his grandmother already made. He was to return and live in the house with her, but she died in February, 1945, and after her death the petitioner got a better job in Florida and remained there. The defendant is not under bond as executor of the estate of the said deceased, and he is collecting rent from the properties, for which he should account. On information and belief the petitioner alleges that the defendant is insolvent, and if required to account to him for rent collected from the said properties, he will be unable, on account of his insolvency and poverty, to do so.
By a second amendment on October 28, 1948, it was further alleged as to his services: The fair and reasonable value of the services the petitioner rendered his grandmother was $25 per month from 1930 to the date of her death, or a total of $4500. He can not allege the exact amount of money he furnished his grandmother in varying amounts from time to time for the reason that he did not keep any account of the same, but the average amount he furnished his grandmother per month is in excess of $10 from 1935 up to the...
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