150 Ga. 566 | Ga. | 1920
This is an equitable action brought October 3, 1917, by Mrs. Bainey against the executors of the will of Mrs. Barksdale, for specific performance of a' parol contract alleged to have been made by B. D. Jones with Mrs. Barksdale in the year 1900. The fourth paragraph of the petition is as follows: “Petitioner shows that about twenty years ago, when she was only a small child, the said Mrs. M. J. Barksdale contracted and agreed with her father, B. D. Jones, that if he would take charge of the farm above referred to [farm in Dirttown valley, consisting of two adjoining land lots 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) dollars, 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. The 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
2. On the rulings made in Potts v. Mathis, 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 fifth 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 a 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 óf the lands, or of the value and extent of the services alleged as-a 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 ab
It is well enough to refer to what was said by Bleckley, J., in Russell v. Switzer, 63 Ga. 711, 725, quoted in Lansdell v. Lansdell, 144 Ga. 571, 572 (87 S. E. 782), viz: “None of these cases, however, are in point on the present discussion, further than they hear 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 secure of his inheritance, and one heir just as secure of it as another. ” We also take the liberty of referring to what Lumpkin, J., quoted in Lansdell v. Lansdell (supra) from Wall’s Appeal, 111 Pa. 460 (5 Atl. 220, 56 Am. R. 288), wherein Green, J., said: “Claims of this nature against dead men’s estates, resting entirely in parol, based largely upon loose declarations, presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful
Iii this State the English rule, in effect, was adopted in our first Civil Code (1863), § 3181, which section has appeared in all of our subsequent codes, and is now embodied in the Civil Code of 1910, § 5516, which is: “As a general rule, the action on a contract, whether express or implied, or whether by parol or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent. ” This general rule has been applied by this court in a number of cases, among them, Empire State Ins. Co. v. Collins, 54 Ga. 376; Pfeiffer v. Hunt, 75 Ga. 513; Gunter v. Mooney, 72 Ga. 205; Austell v. Humphries, 99 Ga. 408 (27 S. E. 736); Hawkins v. Central Ry. Co., 119 Ga. 159 (46 S. E. 82); Guthrie v. Atlantic Coast Line R. Co., 119 Ga. 663 (46 S. E. 824); Cooper v. Claxton, 122 Ga. 596 (50 S. E. 399); Fairchild v.. Hartsfield, 144 Ga. 348 (87 S. E. 285). In Gunter v. Mooney, supra, it was held: “A woman and another entered into a written agreement on July 15, 1862, whereby the other party was to take the son of the woman, feed and clothe him, and give him a common-school education, and a horse, bridle, and saddle when he became twenty-one years of age; the son became of age in December, 1874, and brought suit in 1880, alleging a breach of the covenant, in that the person so agreeing had failed to give him a common-school education: Held, that the plaintiff could not maintain an action of .covenant on the agreement set out, he not being a party or privy to the same, but a mere stranger, and the case was properly dismissed on demurrer. 1 Chitty, PI. 20, 3, and cit.”
This court has recognized certain exceptions to the general rule, as declared in the Civil Code (1910), § 5516. In the early case of Bell v. McGrady, 32 Ga. 257, it appears that Gardner and Kendrick, partners in a liverv-stable business, sold all the property of the firm to McGrady, he agreeing in writing to pay all the firm’s indebtedness, and on such consideration received from the firm all its assets. Bell held a note which the firm owed. The firm and both partners were insolvent, and McGrady refused to pay the note. Bell brought an equitable action against the members of the firm and McGrady. The trial judge dismissed the
It will be seen that the Crawford case and others, relating to contracts adopting or promises to adopt a child, were founded largely on the changed relation or status of the. child itself, and there
The facts alleged in the petition in the case at bar do not bring it within any of the exceptions heretofore recognized in any of the decisions of this court. In this case the suit is brought by the beneficiary under an alleged contract made between her father, Jones, and Mrs. Barksdale, the contract not vesting in petitioner any legal interest; and to hold that she could maintain a suit would be in direct conflict with the provision of the Civil Code, § 5516, above quoted. There can be no reason why an exception to the general rule declared by our statute should lie made in her favor, in view of the allegations of her petition. To create an exception in her favor would be virtually to abrogate our statute, and to hold that a beneficiary of a contract made between two third persons could sue the promisor thereon, though the beneficiary was in nowise connected with such contract, except to receive as a stranger a benefit thereunder. It is true that the petitioner in the case at bar is the daughter of the promisee in the contract, but, as we have already seen, under the English rule that fact does not constitute an exception to the general rule; and while in Massachusetts it was formerly recognized as an exception to the general rule, such former decisions have been reviewed and overruled by the highest court of that State.
The petitioner in the case at bar, as we have seen, was an utter stranger to the contract between her father, Jones, and Mrs. Barks-dale— she furnishing none of the consideration — her relation or status was in no wise changed or affected, nor was any trust (¡rented for her benefit under the terms of the contract; for it the promisor, Mrs. Barksdale, became under the terms of this contract the trustee, or quasi trustee, of the petitioner, so as to entitle her to sue for the enforcement of the contract, then in every instance, without exception, where two persons make a contract in which one of them promises to confer a certain benefit upon a third party, the promisor would become the trustee, or quasi
As we have seen, the English rule was applied both in cases at law and in equity, and our statutory rule virtually adopting the English rule does not confine the enforcement of the rule to cases at law.
4. The petition should have been dismissed on demurrer, and the further proceeding in the trial was nugatory.
Judgment reversed.