Hesterlee v. Hesterlee , 27 Ga. App. 169 ( 1921 )

Broyles, C. J.

(After stating the foregoing facts.) Conceding, but not deciding, that .the city court of Carrollton had jurisdiction of the suit, the petition shows that the suit was based upon an oral contract for the sale of land, and that it did not, come within any of the exceptions to the statute of frauds. The petition was therefore properly dismissed. As was said by Judge McCay in Simonton v. Liverpool &c. Ins. Co., 51 Ga. 77, 82: “To make out a case, as we understand the law, the party seeking to set up a parol contract, which the law requires to be in writing, must show that he has done some act in performance of the contract upon his side, which act of performance has put him in a new position, so .as that it would be a fraud upon him to permit the other party who has accepted this part performance to repudiate it. Browne on Frauds, § 457.” See also Lyons v. Bass, 108 Ga. 573 (34 S. E. 721). The oral agreement stated in the petition was clearly a contract for the sale of land, and the petition fails to show any such part performance of the contract as would take it out of the statute of frauds. It is true the plaintiffs refrained from selling the seven and one fourth acres of land when they sold the other land at public sale, but it is not shown in the petition how this injured them, as it is not alleged that they could not have sold this land subsequently to as great an advantage. As was said by Presiding Justice Lumpkin in Augusta Southern Railroad Co. v. Smith & Kilby Co., 106 Ga. 864 (33 S. E. 864) : “There is no merit in the contention that there was a part performance by the plaintiff in the present case. Mere non-action cannot be .treated as performance, either partial or complete. The plaintiff parted with nothing of value and did nothing to its injury. It simply waited, choosing to rely upon a parol agreement which it ought to have known was not legally binding upon the opposite party.”

Judgment affirmed.

Luke and Bloodworth, JJ., concur.