Lewis v. Southern Realty Inv. Corp.

• Decision Date: 07 October 1930
• Docket Number: 20668.
• Parties: LEWIS v. SOUTHERN REALTY INV. CORPORATION.
• Court: Georgia Court of Appeals

155 S.E. 369

42 Ga.App. 171

LEWIS v. SOUTHERN REALTY INV. CORPORATION.

No. 20668.

Court of Appeals of Georgia, First Division

October 7, 1930

Syllabus by Editorial Staff.

Generally oral contract for services to begin in future and continue for year is void under statute of frauds (Civ. Code 1910, § 3223).

Nonsuit may be granted where uncontradicted evidence shows oral contract of employment sued was for period exceeding year not within statutory exception (Civ. Code 1910, § 3223).

Part performance taking contract out of statute of frauds must be essential part of contract (Civ. Code 1910, § 3223).

Entry on performance of oral contract to serve another for year commencing at future day, does not take contract out of statute of frauds (Civ. Code 1910, § 3223).

Where plaintiff performed no act essential to contract of employment resulting in loss to him or benefit to defendant contract was not taken out of statute of frauds (Civ. Code 1910, § 3223).

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.

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...