Gordon v. Spellman , 148 Ga. 394 ( 1918 )

Beck, P. J.

(After stating the facts.) 1. There was no error in overruling the motion in arrest of judgment. In the decision of the case when it was here before (145 Ga. 682, 89 S. E. 749, Ann. Cas. 1918A, 852) it was said by Presiding Justice Evans: “It was said by Mr. Justice Cobb in Banks v. Howard, 117 Ga. 94 (43 S. E. 438): ‘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/ If the promisor in such a.ease makes a wilP which is probated, devising specific land to another in violation of the terms of the contract, equity will impress a trust on the property, which will follow it into the hands of the personal representative or devisee of the promisor. Belt v. Lazenby, 126 Ga. 767.(5), 773 (56 S. E. 81). Where one makes a will in violation of his contract to make a particular devise, the probate of such will does not defeat ^the equitable remedy of the other party for the enforcement of his rights under the contract. The plaintiff is making no attack on the judgment of probate, but is seeking a decree to avoid the attempted devolution of title by the will, by the impressment of a trust on the property devised.” Applying the principle there ruled, which is the law of this case, the jury were authorized to find a verdict and the court to enter a decree against the plaintiffs in error. The bequest made in the will of Mrs. Graeffe, giving the property in. controversy in this case to the plaintiffs in error, had been assented to. ~ The property passed into the possession of the devisees, and they had made valuable improvements upon it. A verdict for an amount not exceeding the value of the property devised in violation of the terms of the contract of which the defendant in error seeks to have specific performance, and a decree in favor of making this amount a charge upon the property devised, was a proper application of the equitable principle and holding made in that part of the decision rendered in this case which we have quoted above.

2. Complaint is made of certain extracts from the charge to the jury, which dealt with the standard of proof and the character of evidence required in eases brought for the purpose of having specific performance of a parol contract decreed; and there are also assignments of error upon the refusal to comply with written requests to charge dealing with the same subject. We deem it unnecessary to take up for discussion each of these grounds separately. It may be true that the decisions of this court upon this subject are not entirely consistent; but we think it is now an established doctrine, that “a parol contract for land of which specific performance is sought should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement.” And the contract involved in this case, the specific performance of which is the object of the suit, is a contract of the character referred to. This rule was stated in the case of Beall v. Clark, 71 Ga. 818, and the principle there stated has been adhered to in several decisions rendered since the case just referred to was decided. In the case of Printup v. Mitchell, 17 Ga. 558 (63 Am. D. 258), it was said: “A parol contract for land, like the reformation of a deed by parol proof, should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement. It is a serious matter to substitute a parol sale of real estate for a deed.” And in the case of Dwight v. Jones, 115 Ga. 744 (42 S. E. 48), it was said that this rule is now well settled. In the case of Redman v. Mays, 129 Ga. 435 (59 S. E. 212), this doctrine was again restated, the court saying: “Where specific performance is sought for the enforcement of a parol contract for the sale of lands, such contract and the terms thereof should be established so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement.” And the judgment in that case granting a new trial was affirmed, because the evidence “in clearness, strength, and precision failed entirely to measure up to this standard.” See also Adkins v. Flagg, 147 Ga. 136 (93 S. E. 92); Williams v. Segers, 147 Ga. 219 (93 S. E. 215). Other comparatively recent eases containing decisions of this court upon the same subject might be cited in support of the doctrine here recognized. Certain of the extracts from the court’s charge in the instant' case were contrary to the decisions here rendered, and in so far as they state a different doctrine they were erroneous and constitute cause for a new trial; and the requests to charge upon the subject under consideration, in so far as they stated this rule, stated principles applicable to this case.

3. Before the plaintiff would be entitled to a decree for specific performance in this case it was necessary for her to establish with the requisite degree of certainty the contract and agreement as alleged; that is, that Mrs. Graeffe had agreed and promised, in consideration of certain services, to devise the property in question to the plaintiff. The plaintiff could not recover upon a quantum meruit, but could only have a verdict and a decree giving the relief sought, upon establishing the specific contract alleged, that is, the promise upon the part of the testatrix and the performance upon the plaintiff’s part of the services contemplated. We are of the opinion that the court should have instructed the jury in the language of the request contained in the 9th ground of the motion for a new trial, which is as follows: “I charge you that there can be no recovery by the petitioner, under the allegations of her bill, until she has proven to your satisfaction, by a preponderance of the evidence, clearly and strongly and so satisfactorily as to leave no reasonable doubt, that there was an express contract entered into between herself and Mrs. Mary Graeffe for the conveyance by will to the petitioner of the specific "property named in the bill, upon the death of Mrs. Graeffe, in consideration of certain services rendered to Mrs. Graeffe by petitioner, and that these services were rendered and performed by petitioner.” Under the rulings which we have made above, this request stated a correct proposition of law which was applicable to the ease and upon a controlling issue in the case.

4. Certain evidence tending to show the value of services rendered by the plaintiff, which the court upon proper motion of the plaintiffs in error refused to rule out, and which would have been admissible had the suit been based upon a quantum meruit, was irrelevant and immaterial and should have been ruled out.

5. Certain other evidence offered by the defendants in the court below, and held to be inadmissible by the court, was properly ex-eluded; for, whether the court’s reason for excluding it was the proper one or not, the evidence was not pertinent to the issues involved.

6. Inasmuch as the judgment refusing a new trial is reversed because of certain errors committed pending the trial, and the case is remanded for a new trial, no opinion is expressed as to whether or not the evidence was sufficient to authorize the jury to find that the contract alleged in the petition was proved.

Judgment reversed.

All the Justices concur.