Salmon v. McCrary

• Decision Date: 15 September 1942
• Docket Number: 14148.
• Citation: 21 S.E.2d 857,194 Ga. 413
• Parties: SALMON v. McCRARY.
• Court: Georgia Supreme Court

21 S.E.2d 857

194 Ga. 413

SALMON v. McCRARY.

No. 14148.

Supreme Court of Georgia

September 15, 1942

Syllabus by the Court.

1. In the instant suit, in which the plaintiff, as against an administrator, sought specific performance of an alleged oral agreement by the defendant's intestate to 'execute a will giving to petitioner all of her property,' in consideration of services to be rendered by the plaintiff the evidence was not sufficient to establish the alleged contract so clearly and satisfactorily as to leave no reasonable doubt on the minds of the jury, as required by law to authorized a recovery in such case.

2. Where a party seeks specific performance of an executory contract for the purpose of establishing title to property and recovering the same, evidence of a completed gift would not prove the case as laid, and hence would not authorize a recovery under the pleadings as framed.

3. Under the preceding rulings, the court did not err in granting a nonsuit.

Maddox & Griffin, of Rome, for plaintiff in error.

Barry Wright, Jack Rogers, and Alec Harris, all of Rome, for defendants in error.

BELL Justice.

Certain realty and personalty were separately advertised for sale by the administrator of the estate of Mrs. Mollie O'Bryant Grace. Mrs. Bessie Salmon filed separate claims to such realty and personalty, and in aid of her claims she filed an equitable amendment seeking to compel specific performance of an alleged parol contract with Mrs. Grace to execute a will leaving to claimant all of her property, in consideration of specified services of claimant which she contended had been rendered.

The parol agreement on which claimant relied, as stated in paragraph 4 of the equitable amendment, was that 'Mrs. Grace contracted and agreed with petitioner; that if petitioner would look after and care for and nurse and see that she was properly cared for as long as she lived, that she, Mrs. Grace, would execute a will giving to petitioner all of her property, both real and personal, and money, at the death of said Mrs. Grace.' The administrator filed an answer to the equitable amendment, denying the contract alleged. The case was before this court on a former occasion when the following statement was made: 'Under the pleadings the parties were at issue as to the alleged parol contract. The case as thus presented was tried under a stipulation between the parties to try the claim cases together. There was no order of court expressly providing for consolidating the claim cases as originally docketed. The jury returned two identical verdicts 'in favor of the claimant,' which by instruction of the judge were entered respectively on each of the statutory claims. The administator made two motions for a new trial, based on the general grounds. Afterwards, treating the whole proceeding as one by Mrs. Salmon for both equitable and legal relief, the administrator presented two amendments of the motion for a new trial. A new trial was refused, and the administrator took a single bill of exceptions, assigning error on the refusal of a new trial.' McCrary v. Salmon, 192 Ga. 313, 314, 15 S.E.2d 442, 443. This court denied a motion to dismiss the writ of error, and reversed the judgment, holding that the evidence was not sufficient to prove the contract alleged, with that degree of certainty required by the law. In the opinion, after a quotation from Ellis v. Reagan, 172 Ga. 181, 157 S.E. 478, to the effect that in such cases, in order for the plaintiff to prevail, the alleged parol contract must be 'established so clearly and satisfactorily by evidence as to leave no reasonable doubt on the minds of the jury,' it was further stated: 'In the instant case the contract alleged is that if Mrs. Salmon 'would look after and care for and nurse' Mrs. Grace 'and see that she was properly cared for as long as she lived, that she, Mrs. Grace, would execute a will giving to' Mrs. Salmon 'all of her property, both real and personal, and money at the death of said Mrs. Grace.' Evidence that the contract was that Mrs. Salmon 'was to help look after' Mr. and Mrs. Grace 'and see they were looked after;' that Mrs. Grace 'said that she wanted' Mr. and Mrs. Salmon 'to look after her and her business * * * as long as they lived,' and that 'Mrs. Grace, in return for Mrs. Salmon agreeting to do the things * * * just outlined, was to execute a will and leave everything sh...