Opinion
20704.
ARGUED NOVEMBER 10, 1959.
DECIDED JANUARY 8, 1960.
Complaint for land, etc. Worth Superior Court. Before Judge Gray. September 4, 1959.
Ford Houston, John R. Rogers, for plaintiff in error.
Robt. B. Williamson, contra.
The evidence was sufficient to prove beyond a reasonable doubt the oral contract to devise land and compliance with the terms thereof by the defendant W. T. Street.
ARGUED NOVEMBER 10, 1959 — DECIDED JANUARY 8, 1960.
W. G. Rodgers, as administrator de bonis non of the estate of H. S. Rodgers, deceased, filed his petition in the Superior Court of Worth County against Mr. and Mrs. W. T. Street, in which he prayed that the defendants be enjoined from the further cutting of timber on a 72-acre tract of land owned by the decedent; that they be required to account for timber already cut; and that the plaintiff recover full, exclusive, and quiet possession of the land, which was occupied by the defendants.
In the answer to the petition, the defendant, W. T. Street, alleged that he was in possession of the premises by virtue of an oral contract made by him with the decedent in September or October, 1951, by which the decedent agreed to turn his farm over to Street, rent free, on a year-to-year basis and to make a will or like instrument leaving the land in question to W. T. Street, provided Street and his family would move from Albany to the decedent's farm in Worth County, live in his house with him, treat him as a member of the Street family, and "provide all food, care, attention, companionship, laundry, and washing of his clothes, linens, cleaning of his room, and all household duties." Street further alleged that he had complied with the agreement by moving to the decedent's farm, taking care of him for the remainder of his life, and farming the land, and that, although the decedent repeatedly expressed his satisfaction with the agreement, he failed to leave a will devising the land to Street or to make Street a deed to the land. In the answer, Mrs. W. T. Street disclaimed any title to the property in question and stated that she moved to the decedent's farm and performed services for the decedent only as her husband's consort and at his request.
The jury found title to the land to be in the defendant, W. T. Street, and the plaintiff excepts to the denial of his motion for new trial on the general grounds.
"`Contracts under which one of the contracting parties agrees with the other, for a valuable consideration, that he will make a will giving to the other property, either real or personal, have been sustained and enforced in America from the earliest times, and the validity of such contracts seems now to be beyond all doubt.' Banks v. Howard, 117 Ga. 94 ( 43 S.E. 438). However, a plaintiff seeking to enforce such a contract must prove the precise contract beyond a reasonable doubt . . . The contract must also be fair and just . . . The fairness of the contract is usually to be determined as of the date of its making. . . The person seeking specific performance of such a contract must show, in addition to the contract, a substantial compliance with his part of the agreement." Mann v. Moseley, 208 Ga. 420, 421 (1) ( 67 S.E.2d 128). See also Printup v. Mitchell, 17 Ga. 558 (63 Am. Dec. 258); Salmon v. McCrary, 197 Ga. 281 ( 29 S.E.2d 58); Matthews v. Blanos, 201 Ga. 549 ( 40 S.E.2d 715); Davis v. Davis, 212 Ga. 413 ( 93 S.E.2d 356); and Zachos v. Citizens Southern Nat. Bank, 213 Ga. 619 ( 100 S.E.2d 418).
Applying the foregoing principles of law to the facts in this case, we find that the evidence amply supports the verdict of the jury that the defendant W. T. Street was entitled to specific performance of the contract.
The evidence is uncontradicted that Street complied with the terms of the alleged contract by moving to the decedent's Worth County farm, where the decedent lived with the Street family as though he were a member of it, and by providing the decedent with all household requirements and services allegedly contracted for. The evidence is also uncontradicted that the terms of the alleged contract were fair and just, and that the decedent owned no property other than the farm in question.
Barbara Jean Street, the defendants' daughter, testified that she heard the negotiations between her father and the decedent and that the decedent promised her father that, if he would move to the farm, take care of him, and treat him as a member of the Street family, at his death everything he owned would go to Street. This testimony was amplified by the testimony of Mrs. Clyde Edwards, who heard preliminary discussions between Mrs. Street and the decedent, in which the decedent tried to induce Mrs. Street to prevail upon her husband to move to the farm; and by the testimony of Lewis A. Conger, with whom the decedent had discussed his arrangement with Street. Barbara Jean Street further testified that the decedent, during the negotiations, had told her father that he could handle the farm in any manner he saw fit.
The plaintiff introduced in evidence four identical rent contracts for the years 1953, 1954, 1955, and 1956, the year of the decedent's death, by which the decedent rented his farm to Street, the consideration being that Street should "care for and maintain the said party of the first part as a member of his family." The plaintiff contends that these rent contracts constituted the sole agreement between the decedent and Street, and that they were inconsistent with the alleged oral contract entered into by Street and the decedent whereby the decedent would leave the farm to Street. However, the testimony of B. B. Toney, a member of the Toney Brothers firm, from whom Street bought fertilizer on credit, showed that the sole purpose of the rent contracts, which recited no monetary consideration, was to give Toney Brothers a first lien, superior to a landlord's lien for rent, on Street's crops. It thus appears that a portion of the parol contract was simply embodied in the rent contracts to satisfy the requirement of Toney Brothers.
The evidence was amply sufficient to support the verdict of the jury that there was a valid and enforceable parol contract between Street and the decedent.
Judgment affirmed. All the Justices concur.