On appeal from the order overruling the defendant's motion for a new trial, this court reversed on two grounds: (1) that the verdict was not authorized by the evidence; and (2) that there was error in admitting certain testimony. See 222 Ga. 478. On the return of the case to the trial court, the defendant, on January 18, 1967, filed a motion for a summary judgment on the ground that under the pleadings, the record of the evidence adduced at the trial of the case, and the decision of this court on appeal ( 222 Ga. 478), "there is no genuine issue as to any material fact and that the defendants are entitled to a judgment as a matter of law."
Equity does not permit such action with regard to contracts that are initially unenforceable because they violate the statute of frauds, but instead recognizes that the full performance of the contract negates its initial unenforceability and renders it enforceable in equity. See 2 Corbin, supra, §§ 420, 421, 429, 432; Harp v. Bacon, 222 Ga. 478, 482-483 (1) ( 150 S.E.2d 655) (1966). Moreover, the purpose of requiring consent by a person with the legal authority to consent to an adoption, where such a person exists, is to protect that person, the child, and the adopting parents.
Plaintiff testified further that when this loss was reported, the agent again said that the poultry houses were covered. The agent's testimony contradicted that given by plaintiff, his wife and son. Before decreeing reformation "The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing, — in the language of some judges, `the strongest possible,' — or else the mistake must be admitted by the opposite party..." 3 Pomeroy, Equity Jurisprudence, § 859a (5th Ed. 1941). Harp v. Bacon, 222 Ga. 478, 483 ( 150 S.E.2d 655) (1966); Hartford Acc. c. Co. v. Walka Mountain Camp No. 565, 224 Ga. 194 ( 160 S.E.2d 833) (1968). Although the evidence as to the mistake must be clear, unequivocal and decisive (Code § 37-202), there is no rule that reformation will be denied unless the mistake be admitted by both parties.
Martin v. Turner, 235 Ga. 35 (4) ( 218 S.E.2d 789) (1975); Berry v. Brunson, 166 Ga. 523 (4) ( 143 S.E. 761) (1928); Brittain Bros. Co. v. Davis, 174 Ga. 1 (6) ( 161 S.E. 841) (1931); Sumter County v. Pritchett, 125 Ga. App. 222 (4) ( 186 S.E.2d 798) (1971). Although the rule in this state is that one seeking specific performance from a decedent's estate of an oral contract allegedly made with the decedent must establish beyond a reasonable doubt a contract that is "certain, definite, and clear, and so precise in its terms that neither party can reasonably misunderstand it" ( Harp v. Bacon, 222 Ga. 478, 483 ( 150 S.E.2d 655) (1966)), the evidence in this case was sufficient to sustain the verdict. Johnson v. Walton, 236 Ga. 675 ( 225 S.E.2d 55) (1976).
However, such a contract must be definite, certain, and precise in its terms and its existence must be established beyond a reasonable doubt. See Salmon v. McCrary, 197 Ga. 281 ( 29 S.E.2d 58); and Harp v. Bacon, 222 Ga. 478 ( 150 S.E.2d 655). 5. Do the allegations of the complaint, and the affidavit of the appellant in opposition to the motion for summary judgment of the appellees, make an issue of fact for determination?
It is the rule in this State that one seeking to establish a contract such as the one in this case, must establish by proof a contract that is certain, definite, clear, and so precise in its terms that neither party can reasonably misunderstand it, and such proof must establish the existence of the contract beyond a reasonable doubt. See Salmon v. McCrary, 197 Ga. 281 ( 29 S.E.2d 58) (1944) and Harp v. Bacon, 222 Ga. 478 ( 150 S.E.2d 655) (1966). Because of our "Dead Man's Statute" ( Code Ann. § 38-1603) the appellee could not testify as to the separation, reconciliation, and the contract allegedly resulting therefrom.
An oral contract to make a will devising land, for a valuable consideration, which contract has been performed by the promisee, will be enforced by specific performance, if its terms are fair and equitable; and if specific performance is impossible, damages will be awarded for its breach. Banks v. Howard, 117 Ga. 94 (1) ( 43 S.E. 438); Gordon v. Spellman, 145 Ga. 682 ( 89 S.E. 749, AC 1918A 852); Redford v. Lloyd, 147 Ga. 145 (2) ( 93 S.E. 296); Landrum v. Rivers, 148 Ga. 774 (1) ( 98 S.E. 477); Zachos v. Citizens Southern Nat. Bank, 213 Ga. 619 ( 100 S.E.2d 418); Pace v. Pace, 220 Ga. 66 (5) ( 137 S.E.2d 28); Harp v. Bacon, 222 Ga. 478 (1) ( 150 S.E.2d 655); Liberty Nat. Bank c. Co. v. Diamond, 227 Ga. 200 ( 179 S.E.2d 761). The complaint alleged an oral contract to devise property enforceable in a court of equity.
The affidavits show that on one occasion William B. Causey stated "that if" Curtis Causey would move onto the land and take care of his father and mother as long as they lived, William B. Causey "would give him" the property in question, while on a subsequent occasion William B. Causey stated "that he had already given this property to Curtis, and was going to make him a deed to it." From this testimony it cannot be ascertained when the gift was intended to be made. Harp v. Bacon, 222 Ga. 478 (2) ( 150 S.E.2d 655). Therefore, with the failure to establish the existence of the parol gift beyond a reasonable doubt and the existence of material issues of fact in the instant case, the trial court erred in granting the appellee's motion for summary judgment.
This is a suit for specific performance of an oral contract to devise land and for other equitable and legal relief. Upon the trial of the case, the jury returned a verdict in favor of the plaintiff Thad E. Bacon, and the court entered a judgment ordering the defendant Cleveland Harp, executor of the estate of Eudora M. Bacon, to execute and deliver a deed conveying the farm property to plaintiff and canceling the deed purporting to convey Eudora M. Bacon's interest in the farm property to her sister, Eloise Bacon. Defendants filed a motion for new trial which was overruled. On the appeal of the denial of this motion for new trial in the first appearance of this case before this court ( 222 Ga. 478 (2) ( 150 S.E.2d 655)), we ruled that the trial court erred in denying the defendants' motion for new trial on the general grounds, holding: "The evidence was not sufficient to prove beyond a reasonable doubt, which is required in an action for specific performance of an oral contract to devise land, that the defendant promised the plaintiff that, if he would move to Worth County and take charge of her farm and operate it as long as she lived, she would make a will devising the property to him immediately upon his coming to Worth County." (Emphasis supplied).
(Citation and punctuation omitted.) Harp v. Bacon, 222 Ga. 478, 483 (2) ( 150 SE2d 655) (1966). However, "the `reasonable doubt' criterion, if the burden is to be couched in these words, refers not to the standard used by this court but to the jury's finding of the existence of the contract."