Shropshire v. Rainey, (No. 1749.)

CourtSupreme Court of Georgia
Writing for the CourtFISH
Citation104 S.E. 414,150 Ga. 566
PartiesSHROPSHIRE et al. v. RAINEY.
Decision Date29 September 1920
Docket Number(No. 1749.)
150 Ga. 566

104 S.E. 414

SHROPSHIRE et al.
v.
RAINEY.

(No. 1749.)

Supreme Court of Georgia.

Sept. 29, 1920.


(Syllabus by the Court.)

Gilbert, J., dissenting in part.

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.

FISH, C. J. 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:

"First. That said petition is insufficient in law, and that no legal verdict, judgment, or decree can be based thereon."

"Third. That the basis of said suit is an alleged contract between the deceased, M. J. Barksdale, and R. D. Jones, to which plaintiff is neither a party nor privy at law, and for this reason cannot maintain said suit."

"Fifth. They demur specially to paragraph 4 of said petition, and say that the allegations contained therein are vague, uncertain, and in-definite; that same are insufficient in law to

[104 S.E. 415]

place defendants on notice as to the contentions of the pleader, or [upon which?] to base a verdict, judgment or decree."

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:

"Specific performance not being a remedy which either party to the contract can demand as a matter of absolute right, it will not in any given case be granted unless strictly equitable and just. Kirkland v. Downing. 106 Ga. 530. 32 S. E. 632, cited and applied in Pair v. Pair, 147 Ga. 754, 757, 95 S. E. 295. 'Mere inadequacy of price * * * may justify a court in refusing to decree a specific performance; so also any other fact showing the contract to be unfair, or unjust, or against good conscience.' Civil Code [1910], § 4637. In order to authorize, specific performance of the contract, its terms must be clear, distinct, and definite. Studer v. Seyer, 69 Ga. 125. In the absence of allegations in the petition as to the value of the lands, or of the value and extent of the services alleged as the consideration of the contract, it is impossible for the court to determine whether the services performed constituted an adequate or grossly inadequate price for the estate of the person with whom the alleged contract was made; nor could it be determined, in the absence of such essentials, whether the contract was unfair, or unjust, or against good conscience."

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.:

"None of these cases, however, are in point on the present discussion, further than they bear upon the requisites of general law concerning the fact of contract and the fullness and certainty of the evidence by which it is sought to be established. They inculcate a wholesome caution against building up imaginary contracts out of the expression of generous intentions towards persons who, having rendered service, prefer claims for compensation after those whom they served have been removed by death. And the caution is doubly necessary where the claim presented is not merely for just compensation on the basis of a quantum meruit, or to some specific article or articles of property, but goes to the entire estate, real and personal, which the decedent left behind him. Nor is it the less necessary because the heirs at law, if any there be, are remote rather than proximate kindred, or because they are foreigners. Every heir, and an heir of each degree and every nationality, must be...

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50 practice notes
  • Hardeman v. Ellis, (Nos. 5048, 5052.)
    • United States
    • Supreme Court of Georgia
    • September 18, 1926
    ...the contract, the rulings made in the case last cited are applicable here. The cases of Potts v. Mathis, supra, and Shropshire v. Rainey, 150 Ga. 566, 104 S. E. 414, are, we think, on the facts and principles involved, essentially different from the case at bar. We do not think it necessary......
  • Rieves v. Smith, Nos. 11668, 11727.
    • United States
    • Supreme Court of Georgia
    • July 22, 1937
    ...573, 87 S.E. 782; Rahn v. Hamilton, 144 Ga. 644, 87 S.E. 1061; Richardson v. Cade, 150 Ga. 535, 538, 104 S.E. 207; Shropshire v. Rainey, 150 Ga. 566, 569, 104 S.E. 414; McWilliams v. Pair, 151 Ga. 168, 106 S.E. 96; Ansley v. Ansley, 154 Ga. 357, 114 S.E. 182; Ray v. Kinchen, 166 Ga. 788, 14......
  • Kinney v. Crow, No. 12466.
    • United States
    • Supreme Court of Georgia
    • October 11, 1938
    ...240, 187 S.E. 865. On the question of venue the present case differs on its facts from Wynne v. Lumpkin, 35 Ga. 208; Shropshire v. Rainey, 150 Ga. 566, 104 S.E. 414; Hand Trading Co. v. Citizens' Bank of Moultrie, 160 Ga. 448, 128 S.E. 65; Georgia Power Co. v. Rome, 172 Ga. 14, 157 S.E. 283......
  • Avary v. Avary, No. 15672.
    • United States
    • Supreme Court of Georgia
    • January 8, 1947
    ...may not be enforced by the latter. Code, § 3-108; Sterling v. Sterling, 12 Ga. 201; Gunter v. Mooney, 72 Ga. 205; Shropshire v. Rainey, 150 Ga. 566, 104 S.E. 414; Ragan v. National City Bank of Rome, 177 Ga. 686, 170 S.E. 889. In the Sterling case, it was said: "The doctrine is thus st......
  • Request a trial to view additional results
50 cases
  • Hardeman v. Ellis, (Nos. 5048, 5052.)
    • United States
    • Supreme Court of Georgia
    • September 18, 1926
    ...the contract, the rulings made in the case last cited are applicable here. The cases of Potts v. Mathis, supra, and Shropshire v. Rainey, 150 Ga. 566, 104 S. E. 414, are, we think, on the facts and principles involved, essentially different from the case at bar. We do not think it necessary......
  • Rieves v. Smith, Nos. 11668, 11727.
    • United States
    • Supreme Court of Georgia
    • July 22, 1937
    ...573, 87 S.E. 782; Rahn v. Hamilton, 144 Ga. 644, 87 S.E. 1061; Richardson v. Cade, 150 Ga. 535, 538, 104 S.E. 207; Shropshire v. Rainey, 150 Ga. 566, 569, 104 S.E. 414; McWilliams v. Pair, 151 Ga. 168, 106 S.E. 96; Ansley v. Ansley, 154 Ga. 357, 114 S.E. 182; Ray v. Kinchen, 166 Ga. 788, 14......
  • Kinney v. Crow, No. 12466.
    • United States
    • Supreme Court of Georgia
    • October 11, 1938
    ...240, 187 S.E. 865. On the question of venue the present case differs on its facts from Wynne v. Lumpkin, 35 Ga. 208; Shropshire v. Rainey, 150 Ga. 566, 104 S.E. 414; Hand Trading Co. v. Citizens' Bank of Moultrie, 160 Ga. 448, 128 S.E. 65; Georgia Power Co. v. Rome, 172 Ga. 14, 157 S.E. 283......
  • Avary v. Avary, No. 15672.
    • United States
    • Supreme Court of Georgia
    • January 8, 1947
    ...may not be enforced by the latter. Code, § 3-108; Sterling v. Sterling, 12 Ga. 201; Gunter v. Mooney, 72 Ga. 205; Shropshire v. Rainey, 150 Ga. 566, 104 S.E. 414; Ragan v. National City Bank of Rome, 177 Ga. 686, 170 S.E. 889. In the Sterling case, it was said: "The doctrine is thus stated ......
  • Request a trial to view additional results

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