Opinion
23977.
SUBMITTED MARCH 13, 1967.
DECIDED APRIL 6, 1967.
Specific performance. Banks Superior Court. Before Judge Dunahoo.
Kimzey Kimzey, Herbert B. Kimzey, for appellant.
Davis Davidson, Jack S. Davidson, Robert H. Harris, for appellees.
1. "A contract which is required by the statute of frauds to be in writing, and which is therefore put in writing, can not be modified by a subsequent agreement in parol." Gulf Oil Corp. v. Willcoxon, 211 Ga. 462 (2) ( 86 S.E.2d 507); Jarman v. Westbrook, 134 Ga. 19 (2) ( 67 S.E. 403); Elrod v. Camp, Flanigan Toole, 150 Ga. 48 (2) ( 102 S.E. 357).
2. The contract which the petitioner relies on is an oral modification of a written contract to sell land, and it is not binding on the seller. Code § 20-401 (4). Therefore the petitioner can not enforce the contract by specific performance, or recover damages for its breach.
3. The payment of $10 on the purchase price at the time of the execution of the written contract, which payment the seller was obligated to return if the sale was not consummated for reasons other than the default of the petitioner, would not amount to such part performance of the contract as would remove it from the operation of the statute of frauds under Code § 20-402 (3).
4. The trial judge properly sustained the general demurrers to the petition.
Judgment affirmed. All the Justices concur.
SUBMITTED MARCH 13, 1967 — DECIDED APRIL 6, 1967.
James D. Sanders brought a petition against Elmer Vaughn and Jack Davis Smith, seeking specific performance of an alleged contract to sell described land, cancellation of a deed from Vaughn to Smith, temporary restraining order and permanent injunction, and other relief. He prayed for damages in the event the contract could not be specifically performed. The petition alleged the execution of a written contract wherein Vaughn agreed to sell, and the petitioner agreed to purchase, 32.6 acres, more or less, of described land, for the price of $3,000, and a later oral agreement modifying the written agreement, in which Vaughn agreed to sell, and the petitioner agreed to purchase, a tract of 60.96 acres of land, which included the 32.6 acres, for the price of $6,000. It was alleged that when the petitioner attempted to pay the purchase price, Vaughn informed him that he had already sold the property to Smith, and it was asserted that Smith had notice of the petitioner's interest and rights with respect to the property.
The trial judge sustained the general demurrers of the defendants, and the appeal is from this judgment.