Holmes v. Powell
| Decision Date | 16 May 1906 |
| Citation | 54 S.E. 137,125 Ga. 438 |
| Court | Georgia Supreme Court |
| Parties | ALLEN & HOLMES. v. POWELL. |
In a petition declaring upon a contract it is not necessary, even if such contract is within the operation of the statute of frauds, to allege that there was a writing. Upon demurrer it will be presumed that the contract was in writing, unless the averments of the petition distinctly show to the contrary.
[Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 353.]
The petition was subject to the objection raised in the special demurrer that it did not distinctly appear whether the plaintiff had any legal or equitable interest in the subject-matter of the controversy at the time of the alleged contract of sale to the defendant and was otherwise defective.
(Syllabus by the Court.)
Error from Superior Court, Colquit County; R. G. Mitchell, Judge.
Action by D. B. L. Powell against Allen & Holmes. Judgment for plaintiff. Defendants bring error. Reversed.
Powell brought suit against Allen & Holmes, a partnership. The petition alleged that the defendants were indebted to plaintiff in the sum of $1,550, besides interest, by reason of the following facts: During the month of August, 1903, plaintiff and one Kendall "began negotiations for the purchase" of 10, 000 acres of timber land in the state of Florida. "Before such negotiations were terminated, " one Smith acquired a fifth interest therein from plaintiff and Kendall. During the same month, and "while negotiations were still pending, " the defendants made to plaintiff and Kendall a proposition "to let them in the purchase, " agreeing and obligating themselves to pay plaintiff and Kendall $250 each, provided that plaintiff and Kendall would each agree to allow defendants "to come into said trade" and take a two-fifths interest therein. This was agreed to by all the parties concerned. Plaintiff, Smith, and Kendall were each to have a fifth interest. The trade for the purchase of the timber was closed in the same month; the amount paid being $17,000. When the trade was closed the deed to the land was made, and the names of plaintiff, Smith, Kendall, and defendants appeared therein as grantees, in accordance with the agreement above referred to. "This deed was made and executed in Florida, and sent to Moultrie, Ga." When it reached Moultrie the defendants caused it to be returned to the grantor, and another deed made to Kendall, Smith, and defendants as the only grantees. The first deed, in which the name of the plaintiff appeared as a grantee, was destroyed. All of this was done without his authority and against his consent. Within a few days after the second deed was made the grantees therein sold the land for $30,000, realizing $13,000 profit on the transaction. One-half of this sum was received by the defendants. Plaintiff is entitled to $2,600 as his portion of the profits of this transaction, and of this sum $1,300 is due by defendants. In addition to this amount there is due him $250, making the aggregate sum for which this suit is brought $1,550. Plaintiff has demanded this amount of defendants and each of them, and they have refused to pay it. To this petition defendants filed a general demurrer, and also a special demurrer containing numerous grounds. The demurrers were overruled, and the defendants excepted pendente lite. The defendants answered, and the case proceeded to trial, and resulted ina verdict in favor of the plaintiff. The defendants made a motion for a new trial, which was overruled, and they excepted.
W. A. Covington and J. A. Wilkes, for plaintiffs in error.
W. M. Hammond and Shipp & Kline, for defendant in error.
COBB, P. J. (after stating the foregoing facts). 1. One of the objections raised to the petition, in the demurrer, was that the contract relied on as the basis of the suit was a contract for the sale of an interest in the land or concerning land, and it did not appear from the averments of the petition that the contract was in writing. It did not distinctly appear that the contract was verbal. Under such circumstances the objection is not well taken. If the averments of the petition are such as to show a valid contract, even though a contract within the operation of the statute of frauds, and it does not appear that the contract was merely verbal, as against a demurrer the presumption would be that the contract was in writing. Ansley v. Hightower, 120 Ga. 719, 48 S. E. 197 (3). As to whether the...
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Southern Land, Timber & Pulp Corp. v. Davis & Floyd Engineers, Inc.
...matter otherwise. The defendant cannot require a plaintiff to allege whether or not the contract sued on is in writing. Allen & Holmes v. Powell, 125 Ga. 438, 54 S.E. 137; Montgomery v. Alexander Lumber Co., 140 Ga. 51(1), 78 S.E. 413; Georgia, Florida & Alabama Ry. Co. v. Parsons, 12 Ga.Ap......
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Crovatt v. Baker
...the agreement which was made rested in parol. Similar language was employed in the petition involved in the case of Allen & Holmes v. Powell, 125 Ga. 438, 54 S.E. 137, but in that case, on demurrer, it was held that allegations did not affirmatively show that the contract rested only in par......
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Social Benev. Soc. No. 1 v. Holmes
... ... the operation of the rule laid down in the statute of frauds, ... it is not necessary to allege, in a suit on such a contract, ... that it is in writing. As against a demurrer, there will be a ... presumption that the contract is in writing, as the law ... requires it to be. Allen v. Powell, 125 Ga. 438, 54 ... S.E. 137. Besides, the contract of insurance is alleged to be ... contained in the by-laws of the association, a copy of which ... the plaintiff alleged she did not have, but had served notice ... upon the defendant to produce, which implies that the ... contract was in ... ...
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Soc. Bene v. Soc
...writing. As against a demurrer, there will be a presumption that the contract is in writing, as the law requires it to be. Allen v. Powell, 125 Ga. 438, 54 S. E. 137. Besides, the contract of insurance is alleged to be contained in the by-laws of the association, a copy of which the plainti......