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Action on contract. Before Judge Cooper. Augusta Municipal Court. April 8, 1953.
An oral contract which is not to be performed within one year from its inception is within the statute of frauds. There being no such part performance of the contract here as would render it a fraud of the party refusing to comply if the court did not compel a performance, it was not error for the trial court to dismiss on general demurrer an action under an oral contract extending for the space of fifteen months.
Margaret McDonald Tompkins filed suit in the Municipal Court of Augusta for damages for breach of an oral contract. The petition, as amended, alleged in substance: that the parties were divorced; that plaintiff had custody of the minor children belonging to herself and the defendant, Ulie Hayle Tompkins; that defendant recognized transportation of the children to school and other functions as a legal obligation on his part and had provided the same; that, to avoid the need of using his own automobile and because of his love and affection for said children and his legal obligation to support them, he agreed with plaintiff to contribute a certain amount as part payment of the purchase price of an automobile to be used for the accommodation and pleasure of the children at certain times; that the amount contributed "was expressly a gift of the same to plaintiff in order that said automobile could be used for the benefit of said minor children"; that plaintiff had sole title to said automobile; that, relying on this promise, she executed a promissory note, which she necessarily paid in full; and that defendant's obligation was to pay $30 on each of 15 instalment payments of $69.30 each, of which instalments he paid only four, leaving a balance of $330 due to plaintiff.
The petition was dismissed on general demurrer, which attacked it on the grounds that no cause of action was set out and that the contract was within the statute of frauds.
It appears from the petition that, aside from any other consideration as to whether a valid contract is alleged, the agreement was oral, and the obligation, if any, of the defendant thereunder required a space of fifteen months for performance. Code 20-401 provides in part: "To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith or some person by him lawfully authorized, viz . . . 5. Any agreement (except contracts with overseers) that is not to be performed within one year from the making thereof." Code 20-402 provides in part: "The foregoing section does not extend to the following cases, viz. . . 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." But "the mere circumstance that a verbal agreement has been in part performed can afford no reason, such as to control the action of any court, whether of law or equity, for holding the parties bound to perform what remains executory. The doctrine of equity in such cases is, that where an agreement has been so far executed by one party with the tacit encouragement of the other, relying upon his fulfillment of it, that for the latter to repudiate and shelter himself under the provision of the statute would amount to a fraud upon the former, that fraud will be defeated by compelling him to carry out the agreement." Brunswick Grocers Co. v. Lamar, 116 Ga. 1 (2), 6 (42 S. E. 366); Nellis & Co. v. Houser, 33 Ga. App. 266 (2, 3) (125 S. E. 790). Where the allegations of the petition, construed adversely to the pleader, are not sufficient to show that the petitioner has suffered any injury, part performance will not remove the contract from the statute of frauds. Alsobrook v. Taylor, 181 Ga. 10 (4) (181 S. E. 182); General Accident Fire &c. Corp. v. Kimberly, 61 Ga. App. 153 (6 S. E. 2d 78); White v. Simplex Radio Co., 61 Ga. App. 157, 159 (5 S. E. 2d 922); Hotel Candler v. Candler, 198 Ga. 339 (1, 2) (31 S. E. 2d 693). The agreement here appears to have been that, if the defendant would pay part of the purchase price of the automobile, the latter would be "used for the accommodation and pleasure of said minor children at certain times." The money being a gift to the plaintiff, as alleged, the only obligation assumed by the plaintiff was that such funds, when received, would go toward the purchase of the car, and that the car would be used for the accommodation of the children during a portion of the time. No part performance of these obligations by the plaintiff is alleged. It is alleged that she paid the instalment notes in full, but it is not alleged that she has not, as sole owner of the automobile, received full value for her money. There is, in consequence, no such part performance by her as would result in a fraud being perpetrated upon her if the defendant were not compelled to comply with the otherwise unenforceable agreement.
The trial court did not err in sustaining the general demurrers and dismissing the petition.
Killebrew & McGahee, contra.
Pierce Brothers, for plaintiff in error.
DECIDED JULY 14, 1953.
Saturday May 23 04:27 EDT

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