Atwood v. Norton , 31 Ga. 507 ( 1860 )

By the Court. —

Dyon, J.,

delivering the opinion.

The objection to the plaintiff’s right to recover in this case, is, That the contract was obnoxious to the statute of frauds, in this: that it is an agreement that is not to be performed within the space of one year from the making thereof; the same not being in writing and signed by the party to be charged therewith. And we think that the objection is well taken. The testimony of Dawson is, That, on the 14th of December, 1856, he, as the agent of the plaintiff, rented to the defendant a house and lot, in Greensboro, for the year 1857, for the sum of $250, $50 of which sum to be expended in repairs upon said place. The contract of the plaintiff was, that the defendant should have the use and occupation of the premises during the entire year 1857. His right to the enforcefnent of the defendant’s agreement, depended upon his full performance of the contract, and that could not be completed within one year from the 14th of December, 1856. So the agreement was not to, and could not, be performed within one year from the making thereof, on either side, and does not, therefore, fall within the rule laid down by this Court in Johnson vs. Watson, 1 Kelly 351, or any of the cases there cited. One of the tests for determining whether an agreement falls within the statute is, whether either of the parties can terminate the contract without violating its terms within the year. In this case, it is manifest that neither could do so, without the assent of the other.

The plaintiff relies mainly on the fact, that the contract was the result of written propositions by the defendant for the rent of the .premises during the year 1857. Counsel insisting, that when a proposition is submitted on the one side in writing, and accepted on the other, that the contract is not within the statute, although it is not to be performed within the year, notwithstanding, the acceptance was not in writing, and a number of authorities were read in support of that proposition. It is unnecessary to decide that question one way •or the other, as it is not the case before us. The proposition made by the' defendant, is to be found in his letter of the 10th of December, addressed to the plaintiff, in which he says: “Will give $250 from January to January, 1858. You to move your furniture, 'and have a chimney built, and the part of the house shingled that leaks.” If the plaintiff had accepted that proposition, the case would have been the one •contended for by his counsel — but he did not. The agreement actually made and sued upon, is a very different one. In the agreement sued upon, and proven, the defendant agreed to pay $250 for the rent, $50, only, of which was to be expended in repairs. In the written proposition of defendant, a chimney was to be built, and the roof repaired by the plaintiff, no matter what the cost of such repairs, or improvement, might be. In the one sued on, the cost of repairs is limited to $50, and in that lies the difference, which is sufficient to prevent the application of the principle relied on, to this case.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed. •