Killarney Realty Co. v. Wimpey

• Decision Date: 25 June 1923
• Docket Number: 13919.
• Citation: 118 S.E. 581,30 Ga.App. 390
• Parties: KILLARNEY REALTY CO. v. WIMPEY.
• Court: Georgia Court of Appeals

118 S.E. 581

30 Ga.App. 390

KILLARNEY REALTY CO. v. WIMPEY.

No. 13919.

Court of Appeals of Georgia, Second Division

June 25, 1923

Syllabus by the Court.

The Civil Code (1910) § 3222, par. 4, requires that "any contract for sale of lands, or any interest in, or concerning them," to make the obligation binding, shall be "in writing, signed by the party to be charged therewith, or some person by him lawfully authorized."

"In case of sales by auction, the auctioneer shall be considered agent of both parties, so far as to dispense with any further memorandum in writing than his own entries" (Civil Code 1910, § 4107); but where, in an action against the alleged vendee, the vendor in a sale upon terms other than for cash relies upon the entries of an auctioneer, the terms of the sale must be shown in the entry. 25 R.C.L. 646. See, also Lester v. Heidt, 86 Ga. 226, 12 S.E. 214, 10 L.R.A 108.

A receipt given to an alleged vendee by the alleged vendor for a part of the purchase money of lands, signed by the former alone, is not sufficient to charge the other with a contract therein stated and sought to be enforced at the instance of the former, where the statute of frauds is invoked by the latter. Smith v. Jones, 66 Ga. 338, 42 Am.Rep. 72; Fraser v. Jarrett, 153 Ga. 441 (1), 112 S.E. 487.

"The statute of frauds does not require that all the terms of the contract should be agreed to or written down at one and the same time, nor on one piece of paper; but where the memorandum of the bargain is found on separate pieces of paper, and where these papers contain the whole bargain, they form together such a memorandum as will satisfy the statute provided the contents of the signed paper make such reference to the other written paper or papers as to enable the court to construe the whole of them together as containing all the terms of the bargain. 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, so as to satisfy the statute." North v Mendel, 73 Ga. 400 (2), 54 Am.Rep. 879.

(a) Applying the rule of this and the preceding paragraph, the receipt referred to above and a check signed by the alleged vendee for the same sum as that for which the receipt was given, but containing no reference to the receipt or its subject-matter, or to the alleged sale, would not, taken together, constitute a sufficient compliance with the statute as against the alleged vendee.

"As a general rule, for the defendant to avail himself of the statute of frauds he must specially plead it. However, under the ruling in Denmead v. Glass, 30 Ga. 637 (which was cited and apparently approved in Johnson v. Latimer, 71 Ga. 470), in the absence of such a plea the defendant can avail himself of this defense by a timely motion to nonsuit the case. See, also, Tift v. Wight, 113 Ga. 681, 684 (39 S.E. 503)." Bentley v. Johns, 19 Ga.App. 657 (2), 91 S.E. 999. See, also, Bentley v. Smith, 3 Ga.App. 242 (2), 59 S.E. 720; Hill v. Jones, 7 Ga.App. 394 (4), 66 S.E. 1099. In this case the plaintiff's evidence failed to show a compliance with the statute of frauds, either by sufficient entries of the auctioneer, or other writings.

"The refusal of the purchaser to perform [an agreement to buy land] will not give to the owner the right to...