McKee v. Cartledge

• Docket Number: 32410.
• Decision Date: 12 July 1949
• Citation: 54 S.E.2d 665,79 Ga.App. 629
• Parties: McKEE v. CARTLEDGE.
• Court: Georgia Court of Appeals

54 S.E.2d 665

79 Ga.App. 629

McKEE v. CARTLEDGE.

No. 32410.

Court of Appeals of Georgia, Division No. 2.

July 12, 1949

Syllabus by the Court.

1. The petition was not subject to the special demurrer pleading the statute of frauds.

2. Under the allegations of the petition, it was contemplated by the parties that certain duties and obligations were to be performed by the defendant after the delivery of possession of and the warranty deed to the property and these duties and obligations were not merged in the deed and the acceptance of delivery of possession.

Lansing B. Lee, Jr., and Congdon, Harper & Leonard, Augusta, for plaintiff in error.

Thomas L. Hill, Augusta, for defendant in error.

MacINTYRE Presiding Judge.

1. Where in an action for breach of a written contract of purchase and sale of a certain 'lot or parcel of land * * * and improvements thereon * * * consisting of 4-room frame dwelling now under construction * * * house to be completed in full within 30 days or less from date of sale,' it is alleged that between the date of the execution of the writing on March 31, 1947 and June 6, 1947, the seller's (the defendant's) obligations under the written contract were further defined and interpreted by oral undertakings to furnish and install an electric water heater, to finish (sand, varnish, etc.) the floors, and to furnish an electric water pump, all of which came within the seller's obligation to furnish the plaintiff 'a complete house in full'; and it is further alleged that relying upon the defendant's oral assurances that he (the defendant) would complete the unfinished house, the plaintiff moved into the house, paid the purchase price and accepted a warranty deed the plaintiff thereby fully performing his part of the contract, but both the plaintiff and the defendant well knowing that the contract was still incomplete, the petition is not subject to special demurrer as seeking to recover upon oral agreement required by the statute of frauds to be in writing. '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.' Lower v. Winters, 7 Cowen, N.Y., 263, at page 264. But, a contract for the sale of possession and improvements has been held to be within the statute because possession is considered an interest in the land. It is prima facie evidence of title and the sale of the land with the improvements thereon is within the statute. Lowers v. Winters, supra; Howard v. Easton, 7 Johnson, N.Y., 205; Delvin On Real Estate, Vol. I, § 43, p. 63; Code, § 20-401(4). The petition in this case, however, alleged that the purchase money had been paid, the deed to and the possession of the land delivered. Under the provision of Code, § 20-402(2), such allegations take the transaction out of the statute of frauds. The special demurrer is not meritorious.

2 '* * * a contract involving the purchase and sale of lands, that has been partly reduced to writing and partly rests in parol, does not meet the requirement of the statute [of frauds], and is incapable of enforcement. Lester v Heidt, 86 Ga. 226, 12 S.E. 214, 10 L.R.A. 108; Augusta Southern R. Co. v. Smith & Kilby Co., 106 Ga. 864, 33 S.E. 28; Timmons v. Bostwick, 141 Ga. 713, 82 S.E. 29; Peacock v. Horne, 159 Ga. 707, 126 S.E. 813; Thompson v. Colonial Trust Co., 35 Ga.App. 12, 131 S.E. 921; Jackson v. Strowger Automatic Telephone Exchange, 108 Ga. 646, 34 S.E. 207.' Stonecypher v. Georgia Power Co., 183 Ga. 498, 502, 189 S.E. 13, 16. Such a contract is unenforceable, 'unless the circumstances of the transaction bring it within the exceptions to the general rule set forth in the statute. These exceptions are three in number, and are enumerated under section 20-402 of the Code, as follows: '1. When the contract has been fully executed. 2. Where there has been performance on one side, accepted by the other in accordance with the contract. 3. Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance.'' Stonecypher v. Georgia Power Co., supra. We have already held in division 1 of this opinion that the alleged contract came within the second exception in that the purchase money had been paid and possession of the property delivered, and that this took the transaction out of the statute. Under the allegations of the petition the contract sued upon is partly in writing and partly in parol, and being not within the statute of frauds as we have said, is to be treated as any other contract without reference to the statute of frauds. Code, § 20-704(1), provides: 'Parol evidence is inadmissible to add to, take from, or vary a written contract. All the attendant and surrounding circumstances may be proved, and if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract only is reduced to writing * * * and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible.' One of the provisions of the written contract is that 'house to be completed in full within 30 days or less from closing of sale,' the petition alleges that the defendant's promises 'to install the * * * electric hot water heater and electric pump and to finish the * * * floors and walls were part of his [the defendant's] obligations under the * * * written contract, for which plaintiff was to pay the * * *...