Opinion
33625.
DECIDED JUNE 29, 1951.
Breach of contract; from Fulton Civil Court — Judge Arnold. April 16, 1951.
Brackett Brackett, R. B. Pullen, for plaintiffs in error.
Frank Grizzard, Frank Morrison, Norman H. Fudge, contra.
A warranty deed, reciting that for and in consideration of $1 and furnishing the grantor with food, medicine, doctor's bills, hospital bills, burial expenses and other necessities of life, during the lifetime of the grantor, is based upon a valuable consideration, and where the grantees fail to furnish the grantor with the food, medicines and other necessities of life required to properly support and maintain the grantor, she may bring an action at law for the recovery of the damages sustained by her by reason of the breach by said grantees of such agreement.
DECIDED JUNE 19, 1951.
On October 19, 1950, Ella West Dumas filed suit in the Civil Court of Fulton County against William Rufus Dumas and Lillian O. Dumas, setting up: Paragraph 2. That the defendants had injured and damaged her in the sum of $5000 by reason of the facts alleged. Paragraph 3. That on September 8, 1945, she executed and delivered to the defendants a warranty deed to certain described realty, a copy thereof being attached to the petition and made a part thereof. Paragraph 4. That the reasonable market value of these lands at the time of the execution and delivery of this deed, and since, was $5000. Paragraph 5. That the consideration of this conveyance, as expressed therein, was $1 and the agreement of the defendants to furnish plaintiff, during her lifetime, with a home, food, medicine, doctor bills, hospital bills, burial expenses, and all the other necessities of life. Paragraph 6. That the defendants (her son and daughter-in-law) have wilfully and continuously, without just cause, breached their contract and agreement with the plaintiff by failing to furnish her with food, medicine, doctor bills and other necessities of life, other than the fact that the petitioner has continued to reside in the home or residence located on the property described in said deed. Paragraph 7. That the plaintiff is an elderly woman, 72 years of age, in bad health, and in dire need of proper foods, medicines, doctor's services and the necessities of life, which the defendants have wilfully failed and refused to provide under and by virtue of the obligations imposed under said deed and contract. Paragraph 8. That from the date of said contract, the defendants furnished and paid out for the plaintiff's benefit for food, clothing, and fuel, and one doctor's visit ($2.00), a sum total of only $536.10, and plaintiff shows that other than said sum the defendants have not furnished anything plaintiff has required from said date of September 8, 1945 to October 19, 1950, and have made the plaintiff's life miserable and unhappy and on one occasion the defendant, William Rufus Dumas, beat plaintiff about the head and body with his fist in an effort to rid himself of her presence in said home. Paragraph 9. That the plaintiff is 72 years old and has a life expectancy of 7.4 years to live and by reason of her advancing age her medicine and other bills will tend to increase and the plaintiff avers that a fair and reasonable sum necessary to furnish the plaintiff with food, clothing, medicine, and doctor bills, would be an average of not less than $50 per month throughout the period of her life expectancy. Paragraph 10. That from June 2, 1947, to the filing of this suit, the defendants have failed and refused to comply with said contract in any manner, and have failed and refused to furnish the plaintiff with food, medicines, doctor bills and other necessities of life, and the plaintiff alleges that a reasonable value thereof for said period would be the sum of $50 per month. Paragraph 11. That by reason of the defendants' said breach of this contract the plaintiff will have to make other arrangements as to burial expenses and a reasonable sum for this will be $500. Paragraph 12. That by reason of the facts herein above alleged the plaintiff has been injured and damaged by the defendants in the sum of $5000.
The plaintiff prayed for judgment against the defendants jointly and solely for $5000 or other large sum.
Attached to the petition was a copy of the warranty deed from the plaintiff to the defendants and which recited "that the said party of the first part, for and in consideration of the sum of One Dollar, furnishing grantor a home, food, medicine, doctor's bills, hospital bills, burial expenses and all the other necessities of life during grantor's lifetime, the said One Dollar in hand paid, and the above said valuable considerations agreed to at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sell and convey unto the said parties of the second part, their heirs and assigns" etc.
The defendants, before pleading to the merits, filed their general and special demurrers to the plaintiff's petition. The trial judge rendered this order and judgment: Paragraphs 1, 2, 3, 4, and 5 of the demurrer are overruled, this being the ground of general demurrer and the grounds of special demurrer directed to paragraphs 2, 4, 6 and 7 of the petition. Paragraph 6 of the demurrer "is sustained as to the following allegations of paragraph 8 of the petition, to wit: and have made your petitioner's life miserable and unhappy, and on one occasion, defendant, William Rufus Dumas, beat her about the head and body with his fist in an effort to rid himself of petitioner's presence in said home,'" same being stricken from this paragraph of the petition. This ground of demurrer was overruled as to the remainder of said paragraph. Paragraph 9 of the petition was likewise stricken. However, the demurrer as to paragraph 10 was overruled. The special demurrer directed to paragraph 11 of the petition was sustained and that paragraph ordered stricken. The special demurrer to paragraph 12 of the petition was overruled.
To this judgment the defendants excepted. The plaintiff does not assign error on that part of the order and judgment sustaining the special demurrers of the defendants to a part of paragraph 8 of the petition and to paragraphs 9 and 11 thereof and directing that same be stricken.
1. The plaintiff had previously filed in Fulton Superior Court her suit in equity seeking the cancellation of the deed which she executed and delivered to the defendants. The defendants demurred to this petition, and to the judgment overruling their demurrer the defendants excepted to the Supreme Court of this State, and that court ruled that in order for the grantor to maintain such action in equity, where there is no fraud alleged, it must appear that the grantees were insolvent. Dumas v. Dumas, 205 Ga. 238 ( 52 S.E.2d 845). It not being alleged in the petition that the defendants were insolvent, the Supreme Court reversed the trial court. In the decision that court ruled: "Where the consideration recited in a deed is `one dollar, furnishing grantor a home, food, medicine, doctor's bills, hospital bills, burial expenses, and all the other necessities of life during grantor's lifetime,' and the grantee has failed and refused to furnish the grantor the specified items, ordinarily the remedy of the grantor would be an action for damages. Code § 85-902; Brinson v. Hester, 185 Ga. 761, 762." Dumas v. Dumas, supra. Where there is a failure of the grantee in such a deed to support the grantor, an action ordinarily lies for the recovery of the value thereof. Davis v. Davis, 135 Ga. 116 ( 69 S.E. 172). The plaintiff could recover the reasonable value of the support of the grantor during the time the grantees failed to furnish the same. See Kytle v. Kytle, 128 Ga. 387 (2) ( 57 S.E. 748); McCardle v. Kennedy, 92 Ga. 198 ( 17 S.E. 1001); Lindsey v. Lindsey, 62 Ga. 546. The acceptance of this instrument by the defendants bound them to perform the agreements therein contained. Kytle v. Kytle, supra. The contract here sued on was for a valuable consideration and was enforceable. Ayer v. First National Bank Trust Co., 182 Ga. 765, 767 ( 187 S.E. 27).
"A contract may be either entire or severable. In the former the whole contract stands or falls together. In the latter the failure of a distinct part does not void the remainder. The character of the contract in such case is determined by the intention of the parties." Code, § 20-112. It is clear to the court that under the provisions of the contract here, it is not an entire one, and the mere furnishing of a shelter was in no wise a compliance with this contract.
There is no merit in the contention that the character of the services to be performed by the grantees and the amount or quantity thereof do not clearly appear from the petition. As against the grounds of demurrer, it appears from the petition and the contract itself that the parties agreed to the items therein set out, and reasonably construed, the plaintiff was to be furnished an amount of food and the other items and necessities mentioned, sufficient to maintain and support her. The plaintiff alleges that $50 monthly is a reasonable sum and will cover all food, medicines and other necessities of life necessary to properly support and maintain her. Such an allegation was not improperly made when considered in connection with the wording of this contract. It is true that such a contract would be based upon the level of society occupied by the plaintiff. However, whether or not $50 monthly is a reasonable amount and sufficient to maintain the plaintiff in the proper manner is for the jury. The fact that the plaintiff continued to live in the home, on the land which she had deeded to defendants, and that the defendants furnished this part of the support and maintenance to the plaintiff does not amount to a waiver of the breach by the defendants in failing to supply food and the other necessities of life required under the contract by the plaintiff. The fact that the defendants furnished an inadequate amount of food, medicine, etc., which was accepted by the plaintiff, does not amount to a waiver of the entire breach by the plaintiff. The plaintiff alleges that $50 monthly is a reasonable sum for her proper support and maintenance and if this is true the plaintiff would be entitled to recover that sum up to the time of trial, less any amounts which she received. The plaintiff would be entitled to recover in another action such future amounts as might accrue to her under the terms of the contract occasioned by a breach of the contract provided and if the contract is breached in the future. Such amounts, under the terms of the contract, may be more or less per month than the jury might find due her per month from the breach until the date of the trial.
There is no merit in the grounds of the special demurrer and the petition as a whole set forth a cause of action. The petition was not subject to demurrer because thereby the plaintiff sought to recover anticipated damages for future happenings. The plaintiff sought to recover a reasonable sum monthly, which she alleges was $50, for failure of the defendants to furnish to her the required food, medicine and other necessities. The damages sought were not too remote nor were they speculative.
The plaintiff sought judgment for such sum as the jury might find that the food, clothing, medicines and other necessities of life, which the defendants failed to furnish to the plaintiff as they agreed to do, were reasonably worth. The jury would be authorized to take into consideration the plaintiff's station in society, in determining what was a reasonable compensation for failure of the defendants to furnish the plaintiff with the food and other necessities of life required by her, that is, the amount and kind of such food and other necessities of life which the plaintiff required to be supported and maintained in such proper and reasonable manner.
In these circumstances, the plaintiff's petition set out a cause of action and none of the grounds of special demurrer, which were overruled by the court and on which error is assigned here, were well taken. The trial court did not err in rendering the judgment excepted to.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.