54 S.E.2d 665 | Ga. Ct. App. | 1949
1. The petition was not subject to the special demurrer pleading the statute of frauds.
2. Under the allegations of the petition, it was contemplated by the parties that certain duties and obligations were to be performed by the defendant after the delivery of possession of, and the warranty deed to, the property, and these duties and obligations were not merged in the deed and the acceptance of delivery of possession.
2. "A contract involving the purchase and sale of land, that has been partly reduced to writing and partly rests in parol, does not meet the requirement of the statute [of frauds] and is incapable of enforcement. Lester v. Heidt,
4. Even though the petition is construed most strongly against the pleader, as it must be on demurrer, and is viewed in the light of the allegations that the plaintiff accepted possession of the property and a warranty deed thereto, and even though we assume that the warranty deed was in the usual and customary form — the deed does not appear in the record — and contained no reference to the electric water heater, the pump, and the finishing of the floors and walls, the parol agreements with reference to such items were not merged in the deed. "Where, however, the deed constitutes only a part performance of the preceding contract, other distinct and unperformed provisions of the contract are not *632
merged in it." 18 C. J. 270, § 231; and see Pierce v.Dennett.
Judgment reversed. Gardner and Townsend, JJ., concur.