Shropshire v. Rainey
Citation | 104 S.E. 414,150 Ga. 566 |
Decision Date | 29 September 1920 |
Docket Number | (No. 1749.) |
Parties | SHROPSHIRE et al. v. RAINEY. |
Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Chattooga County; Moses Wright, Judge.
Action for specific performance by H. B. Rainey against Wesley Shropshire and others as executors. Demurrers to petition overruled, and verdict and judgment for plaintiff, motion for new trial denied, and defendants bring error. Reversed.
Wesley Shropshire, of Summerville, and Rosser & Shaw, of La Payette, for plaintiffs in error.
J. M. Bellah, of Summerville, and Maddox & Doyal, of Rome, for defendant in error.
This is an equitable action brought October 3, 1917, by Mrs. Rainey against the executors of the will of Mrs. Barksdale for specific performance of a parol contract alleged to have been made by R. D. Jones with Mrs. Barksdale in the year 1900. The fourth paragraph of the petition is as follows:
"Petitioner shows that about 20 years ago, when she was only a small child, the said Mrs. M. J. Barksdale contracted and agreed with her father, R. D. Jones, that if he would take charge of the farm above referred to [farm "in Dirttown valley, consisting of two adjoining landlots in said Chattooga county, formerly known as the Dickerson farm, and now known as the Barksdale farm"], which she then owned and has owned continuously since, would keep the same rented, collect the rents, pay the taxes, see after the necessary repairs on the buildings and farm, that she would will the same, at her death, to petitioner; and in accordance with said agreement her said father did take charge of the same, collected rents thereon, paid the taxes, and in doing the same expended on said farm approximately the sum of $500, relying on said Mrs. M. J. Barksdale to carry out the terms of her agreement and will said property to petitioner."
By amendment an itemized statement of amounts alleged to have been paid by Jones for Mrs. Barksdale during the years 1900 to 1916, inclusive, for taxes, repairs on the buildings situated on the farm, and material for repairs is set forth; the sum of such items being $440.73. The petition alleged that Mrs. Barksdale failed to comply with her contract, but executed a will which was probated after her death in which she failed to devise the farm to petitioner. This petition was demurred to on the following among other grounds:
The demurrers were all overruled. The defendants filed exceptions pendente lite to the judgment overruling them. The case went to trial before a jury, and a verdict was rendered for the plaintiff. Defendants moved for a new trial, which was refused, and they excepted, assigning error upon the refusal of a new trial, and upon their exceptions pendente lite. In the brief of counsel for plaintiffs in error it is stated:
"The plaintiffs in error still insist upon the several grounds of their demurrer, as amended."
1. The ruling announced in the first headnote needs no elaboration.
2. In the rulings made in Potts v. Math-is, 147 Ga. 495, 94 S. E. 767, and subsequently in the same case, 149 Ga. 367, 100 S. E. 110, it is clear that the petition did not set forth a cause of action, and that the first and iifth grounds of the demurrer thereto should have been sustained by the trial judge. As was said in the decision last cited:
In the instant case there is no allegation as to the value of Mrs. Barksdale's farm, the subject-matter of the alleged contract, nor even as to the number of acres constituting it, though this court will take judicial cognizance of the fact that regular lots of land in Chattooga county contain 160 acres each. The petition alleges that the farm consisted of two adjoining lots of land. It fails to state the value of the services of Jones rendered under the alleged contract, though the amount of his expenditures in the way of taxes, repairs, etc., is set forth. It will be readily observed that the present case falls squarely within the decision in Potts v. Mathis, supra.
It is well enough to refer to what was said by Bleckley, J., in Russell v. Switzer, 63 Ga. 711, 725, quoted in Landsdell v. Landsdell, 144 Ga. 571, 572, 87 S. E. 782, viz.:
We also take the liberty of referring to what Lumkin, J., quoted in Lansdell v. Lans-dell, supra, from Wall's Appeal, 111 Pa. 460, 5 All. 220, 56 Am. Rep. 288, wherein Green, J., said:
3. The third ground of demurrer to the petition should also have been sustained. This ground was to the effect that the plaintiff could not maintain the action. In 9 Cyc. 374, it is said:
There is a class of English cases where nearness of relationship of one party to the contract with the party to be benefited by it was formerly supposed to give to the latter the benefit of the consideration and a right to sue on the contract. But such cases were subsequently considered and deliberately disapproved by the Court of Queen's Bench, and can no longer be considered law. Fry's Specific Performance, § 203; Tweedle v. Atkinson, 1 Best & Son, 393. The same early doctrine held by...
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