Jenkins v. Brown

• Decision Date: 12 February 1934
• Docket Number: No. 22942.,22942.
• Parties: JENKINS. v. BROWN.
• Court: Georgia Court of Appeals

48 Ga.App. 480

173 S.E. 257

JENKINS.

v.BROWN.

No. 22942.

Court of Appeals of Georgia,

Division No. 1.

Feb. 12, 1934.

Syllabus by the Court.

1. "Where one employs another to furnish the labor and material and to do the work necessary to the improvement of real estate, but renounces the contract prior to the time when the contractor has incurred any expense toward the performance of it, the recovery for the breach of the contract is limited to the difference between the contract price and what it would have cost the contractor in labor and material to have performed it." Campbell v. Mion, 6 Ga. App. 134, 64 S. E. 571.

a. The judge of the court below did not err in striking, on demurrer, so much of the petition of the plaintiff as sought to set up the alleged right of lien.

2. A parol promise or agreement to pay for the improvements on land is not within fourth section of the statute of frauds. Improvements upon land, distinct from the title or possession, are not an interest in land within the meaning of the statute. The term "improvements" is only another name for the work and labor bestowed upon the land; and a parol promise to pay for work already done, or to be done, upon land, would not come within the statute.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by J. W. Jenkins against W. W. Brown. To review a judgment dismissing his petition on general demurrer, plaintiff brings error.

Reversed.

Augustine Sams, of Atlanta, for plaintiff in error.

Kirkland & Garner and Fred W. Skinner, all of Atlanta, for defendant in error.

MacINTYRE, Judge.

The plaintiff in error, Jenkins, brought an action for damages against the defendant in error, Brown, for breach of an alleged oral contract for the erection of a building on a lot of land owned by Brown. The entire lot of 77 by 265 feet was to be graded to a level with the sidewalk, and other grading and excavating was to be done. A building 60 by 225 feet was to be erected on the lot. It was alleged that the entire subject-matter of the contract was for $25,500 and that the entire cost to the plaintiff would have been $21,991 and his profit would have been $3,509, for which he sought recovery. Upon the hearing the trial judge dismissed the plaintiff's petition on general demurrer, and gave as his reason for so doing that the contract was one within the fourth section of the statute of frauds (Civil Code 1910, § 3222 (4), which section requires "any contract for sale of lands, or any interest in, or concerning them" to be in writing.

The fourth section of 29 Charles II, c. 3, required any "contract for sale of lands or any interest in or concerning the same" to be in writing, and this was the rule in England at the time of the adoption of our Code.

The two foregoing statements of this rule are substantially the same, and our statutemay be taken as meaning the same as the English statute of frauds. Roughton v. Raw-lings, 88 Ga. 819, 822, 16 S. E. 89. This was the rule in New York at the time of the decision of Frear v. Hardenbergh, 5 Johns. (N. Y.) 272, 4 Am. Dec. 356, where Justice Spencer seems to have adopted the principle of construction that the statute had in view some interest to be acquired in the land itself, by contract, and was not such as was collateral, and by which no kind of interest was to be gained therein. This construction seems also to have been followed in Lower v. Winters, 7 Cow. (N. Y.) 263, 264, wherein it was said that "It has been repeatedly held by this court, that a parol promise or agreement to pay for the improvements on land, is not within the statute of frauds. Improvements upon land, distinct from the title or possession, are not an interest in land, within the meaning of the statute. They are only another name for the work and labor bestowed on the land; and a parol promise to pay for work already done, or to be done upon land, never has been held to come within the statute. (Frear v. Hardenbergh, 5 Johns. 275 ; Benedict v. Beebee, 11 Johns. 145.) In Howard v. Easton, 7 Johns. 205, the contract was for the sale of the possession, and improvements. This was held to be within the statute. The court remarked that possession must be considered an interest in land. It is prima facie evidence of title."

In Cassell v. Collins, 23...