106 Ga. 864 | Ga. | 1899
Although the bill of exceptions complains of various rulings made by the trial court, this case is really controlled by a determination of two only of the questions involved. The following statement presents in condensed form all that is material to an understanding of these questions and of our decision thereon: The Augusta Southern Railroad
Company brought an action against the Smith & Kilby Company for an alleged breach of a written contract which would, had the same been in parol, have been void under the statute of frauds. Finding itself unable to prove facts entitling it to a recovery upon its original petition, the plaintiff filed certain amendments thereto, alleging that after the making of the written contract, the same had in material respects (the particulars concerning which were set forth) been changed and modified by a parol agreement between the parties. Treating the amended contract as a whole, it was still one which would have been void under the statute of frauds had it rested entirely in parol. After these amendments to the petition were
We will now briefly notice the Georgia cases which counsel for the plaintiff in error insist are not in harmony with those-above cited. In Collins v. Lester, 16 Ga. 410, the contract, under consideration was one which the law did not require to-be in writing, it being for the hire of slaves for a term of less-than one year. Although it appears that the negotiations leading up to the contract took place in December, 1851, the slaves, were not delivered to the hirer until January, 1852, on the 2d day of which month a written contract was signéd stipulating that the term of hiring was to expire on the 24th of December of that year. Cartright v. Clopton, 25 Ga. 85, was an action against a surety upon a promissory note. While the statute of frauds does require that a contract of this nature must be in writing, the point was not raised in that case that the written contract could not be altered by a subsequent parol agreement. The controversy seems to have been whether the parol evidence-objected to proved a contract contemporaneous with the giving of the note sued on, or one made subsequently thereto; and the court simply held that, under the evidence submitted, the point was not well taken that the defendant sought by parol to en-graft upon the written instrument an alleged oral stipulation agreed on at the time the note was signed. There certainly-was in that case no ruling upon the question now before us. Nor was this question made or passed upon in Cothran v. Brower, 75 Ga. 494. Indeed, it does not appear that the contract there involved was within the statute of frauds, the same being an agreement for professional services which might, in the contemplation of the parties, have been performed within less than a
2. There is no merit in the contention that there was part performance by the plaintiff in the present case. Mere non-action can not be treated as performance, either partial or complete. The plaintiff parted with nothing of value and did nothing to its injury. It simply waited, choosing to rely upon a parol agreement which it ought to have known was not legally "binding upon the opposite party. The case of Simonton v. Insurance Co., supra, (pp. 80-82) not only' supports what is here laid down, but on its facts goes a considerable extent further upon the same line.
Judgment affirmed.