Lewis v. Southern Realty In, 20668.

• Decision Date: 07 October 1930
• Docket Number: No. 20668.,20668.
• Citation: 155 S.E. 369,42 Ga.App. 171
• Parties: LEWIS. v. SOUTHERN REALTY INV. CORPORATION.
• Court: Georgia Court of Appeals

42 Ga.App. 171

155 S.E. 369

LEWIS.

v.SOUTHERN REALTY INV. CORPORATION.

No. 20668.

Court of Appeals of Georgia,

Division No. 1.

Oct. 7, 1930.

Syllabus by Editorial Staff.

Error from Superior Court, Crisp County; A. J. McDonald, Judge.

Action by T. M. Lewis against the Southern Realty Investment Corporation. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

L. L. Woodward, of Vienna, and Duncan & Nunn, of Perry, for plaintiff in error.

Strozier & Gower, of Cordele, for defendant in error.

Syllabus Opinion by the Court

BLOODWORTH, J.

1. As a general rule, "a verbal contract for services, which are to begin at a future date and continue for a period of a year, is void under the statute of frauds." Williams V. Garrison, 21 Ga. App. 44(2), 93 S. E. 510.

2. "It is not error to grant a nonsuit where it appears from the evidence, without contradiction, that the contract of employment on which the plaintiff's right of action depended is for a period exceeding one year, and is not in writing, and there is no evidence which brings the case within the exception provided by the Civ. Code 1895, § 2694 [Civil Code of 1910, § 3223]." Bentley v. Smith, 3 Ga. App. 242(2), 59 S. E. 720.

3. Plaintiff in error contends that the statute of frauds is not applicable in this case, because the plaintiff was an overseer, and contends that there was such part performance of the contract as will take it out of the operation of the statute of frauds. The evidence does not support either contention. "The part performance which will take a contract out of the operation of the statute of frauds is such as is, within the terms of the agreement, an essential part of the contract, and as such is essential to the performance of the contract. The fact that the person who has contracted to serve another one year, to commence at a future day, enters upon the performance of his contract, does not take the case out of the statute. The servant may quit at any time and recover the value of his services on a quantum meruit, and the master may discharge the servant at any time without incurring liability therefor." Bentley v. Smith, 3 Ga. App. 242(3), 59 S. E. 720. Plaintiff has performed no act essential to the contract and which has resulted in loss to him or benefit to the defendant Bagwell v. Milan, 9 Ga. App. 315(4), 71 S. E. 684.

4. Counsel for plaintiff in error asks that the decision in the case of Bentley v. Smith, 3 Ga. App. 242, 59 S. E. 720, be reviewed and overruled. This...