Logan v. Logan

• Decision Date: 07 September 1967
• Docket Number: No. 24178,24178
• Citation: 223 Ga. 574,156 S.E.2d 913
• Parties: Mary Jo LOGAN et al. v. Elgin K. LOGAN et al.
• Court: Georgia Supreme Court

Page 913

156 S.E.2d 913

223 Ga. 574

Mary Jo LOGAN et al. v. Elgin K. LOGAN et al.

No. 24178.

Supreme Court of Georgia.

Sept. 7, 1967.

Rehearing Denied Sept. 21, 1967.

Matthews, Maddox, Walton & Smith, Oscar M. Smith, Rome, Robert Edward Surles, Summerville, for appellants.

F. H. Boney, Summerville, for appellees.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

This is a suit by two brothers against the executrix of their mother's will and their brothers and sisters to enforce an oral contract made with their mother by which she allegedly agreed to devise property to them in consideration for their services in operating a dairy and farming business after the death of their father. This case has been before this court on two previous occasions. Logan v. Logan, 221 Ga. 769, 147 S.E.2d 326; Logan v. Phillips, 222 Ga. 714, 152 S.E.2d 384.

The evidence shows that the plaintiffs and their father entered the dairy and farming business in 1946 under a partnership agreement in which each had a one-third interest. The father died in 1955 and the mother acquired her husband's interest in the partnership. At that time each owned one-third of a 200 acre tract of land in Walker County, Georgia and one-third of all livestock, machinery and other personal property used in connection with the dairy and farming business. The Walker County tract was used for pasture and growing feed. The main dairy and farming operations were located on an 85 acre tract of land in Chattooga County, which can be termed the 'homeplace' owned by the mother. After the father's death the plaintiffs alleged their mother agreed orally to make a will devising to them the 'homeplace' with the exception of the residence, her one-third interest in the Walker County tract, and her one-third interest in the dairy and farming business and all of the assets thereof in consideration for their carrying on such business and sharing the profits with her on a one-third basis as they had done with their father. In 1955, shortly after the father died, the mother executed a will in which she devised to the plaintiffs the same property claimed under the oral contract. The plaintiff carried on said business and devoted their full time the thereto until their mother's death in 1963. Partnership tax returns were filed which showed that each partner received a net income of approximately $3,000 per year from 1955 to 1963. The evidence also shows that plaintiffs performed substantially all the work necessary to the operation of the dairy and farm and that these services were worth $5,000 to $6,000 per year each and that the 'homeplace' tract, less the residence, was worth approximately $13,000 to $16,000 in 1955. During this period substantial improvements were made on the homeplace such as terracing, fencing, improving pastures, etc., which were paid for by the partnership earnings. There is no evidence in the record of the value of the Walker County tract, the livestock and all of the other personal property owned by the partnership.

In 1960 the mother executed another will which devised the property contrary to the oral agreement claimed by the plaintiffs, and she also deeded a 250 foot square tract of the 'homeplace' to one daughter who did not take possession of it before the mother died.

The plaintiffs prayed for specific performance of the alleged oral contract and cancellation of the deed to the 250 foot square tract.

At the conclusion of the evidence the defendants moved for a directed verdict which was denied by the court. The jury returned a verdict for the plaintiffs. The defendants filed a motion for new trial and a motion for judgment notwithstanding the verdict which were denied. They filed their notice of appeal from the denial of these motions. In their enumeration of errors the defendants contend, among other things, that the trial court erred in overruling their motion for directed verdict and their motion for judgment notwithstanding the verdict. Held:

1. The appellees' motion to dismiss the appeal in this court because of delay in filing the transcript of evidence in the lower court is denied for the reason that the transcript of evidence was filed therein before the notice of appeal was filed and complies with the Appellate Practice Act. Code Ann. § 6-806 (Ga.L.1965, pp. 18, 26).

2. 'An oral contract by the terms of which a person agrees for a valuable consideration that he will make a will giving property to the other contracting party may be enforced by specific performance in this State. See Banks v. Howard, 117 Ga. 94, 43 S.E. 438. The law, however, very properly has laid down some very strict rules governing the enforcement of any contract by specific performance. Specific performance of a contract will not be decreed unless 'the contract to definite and specific, based upon a sufficient legal...