(29 Car. II, c. 3, Cobb's 1851 Digest, p. 1127; Ga. L. 1851-52, p. 243, § 1; Ga. L. 1855-56, p. 233, § 25; Ga. L. 1855-56, p. 238, § 1; Code 1863, § 1952; Code 1868, § 1940; Code 1873, § 1950; Ga. L. 1880-81, p. 62, § 1; Code 1882, § 1950; Civil Code 1895, § 2693; Civil Code 1910, § 3222; Code 1933, § 20-401; Ga. L. 1962, p. 156, § 1; Ga. L. 1988, p. 403, § 1; Ga. L. 2018, p. 155, § 2-2/HB 190; Ga. L. 2019, p. 782, § 1/SB 37; Ga. L. 2020, p. 377, § 2-13/HB 865.)
Cross references.- Parol contract between employer and overseer, § 10-6-121.
Limitation of recovery on parol contracts for sale of personal property, § 11-1-206.
Requirement of writing to support contract for sale of goods for price of $500.00 or more, § 11-2-201.
When part performance removes agreement from operation of this section, § 13-5-31.
Validity of parol contracts creating landlord and tenant relationship, § 44-7-2.
Law reviews.- For article discussing options to purchase realty in Georgia, with respect to the statute of frauds, see 8 Ga. St. B.J. 229 (1971). For article discussing the advantages of contract rescission as a remedy for fraud, with respect to the parol evidence rule and the statute of frauds, in light of City Dodge, Inc. v. Gardner, 232 Ga. 766, 208 S.E.2d 794 (1974), see 11 Ga. St. B.J. 172 (1975). For article, "Promissory Estoppel and the Georgia Statute of Frauds," see 15 Ga. L. Rev. 204 (1980). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985). For annual survey of law of contracts, see 38 Mercer L. Rev. 107 (1986). For annual survey article on commercial law, see 50 Mercer L. Rev. 193 (1998). For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For article, "The Cost of Consent: Optimal Standardization in the Law of Contract," see 58 Emory L.J. 1401 (2009). For annual survey on business associations, see 70 Mercer L. Rev. 19 (2018). For note discussing statute of frauds considerations relating to the finance clause in realty sales contracts, see 8 Ga. St. B.J. 118 (1971). For note questioning the applicability of the statute of frauds to the facts in the case of Thomas v. Harris, 127 Ga. App. 361, 193 S.E.2d 260 (1972), appearing below, see 8 Ga. L. Rev. 186 (1973). For comment on Baxley Hdwe. Co. v. Morris, 165 Ga. 359, 140 S.E. 869 (1927), see 1 Ga. L. Rev. No. 3 P. 51 (1927). For comment on Cohen v. Pullman Co., 243 F.2d 725 (5th Cir. 1957), holding that an oral agreement to sell land which is unenforceable because of the statute of frauds cannot be the basis for recovery of damages in fraud and deceit as the purpose of the statute of frauds is to prevent persons from being liable for nonperformance of such claimed promises, see 20 Ga. B.J. 427 (1958). For comment, "Boats Against the Current: The Courts and the Statute of Frauds," see 47 Emory L.J. 253 (1998).
JUDICIAL DECISIONSANALYSIS
For discussion of history of section, see Turner v. Lorillard Co., 100 Ga. 645, 28 S.E. 383, 62 Am. St. R. 345 (1897).
Purpose for statute of frauds is to preclude admission of parol evidence to vary, modify, or contradict otherwise clear agreement. However, rule does not apply in cases where instrument merely shows incompleteness on the instrument's face; under these circumstances, extrinsic evidence is allowed to establish other agreements referable to incompleteness when not inharmonious with basic writing. Module Mobile, Inc. v. Fulton Nat'l Bank, 150 Ga. App. 808, 258 S.E.2d 614 (1979).
Violation of statute does not affect validity of contract for purposes other than enforcement.
- Parole contract unenforceable by reason of statute of frauds is nevertheless a valid, subsisting contract as between persons other than contracting parties, for purposes other than recovery upon the contract. Waynesboro Planing Mill v. Perkins Mfg. Co., 35 Ga. App. 767, 134 S.E. 831 (1926).
Statute of frauds is no bar to relief in quantum meruit. Dawn Mem. Park, Inc. v. Southern Cemetery Consultants, 115 Ga. App. 180, 154 S.E.2d 258 (1967).
Former Code 1933, § 61-102 (see O.C.G.A. § 44-7-2) was but an extension of paragraphs (4) and (5) of former Code 1933, § 20-401 (see O.C.G.A. § 13-5-30) and was in essence a portion of the statute of frauds and derived therefrom. Blanton v. Moseley, 133 Ga. App. 144, 210 S.E.2d 368 (1974).
"Letter of intent" stating terms for proposed sale of plant and equipment therein, which sale was to be contingent on a future agreement as to an inventory of assets, involved a "package deal" for real estate and goods and was thus governed by (and failed under) O.C.G.A. § 13-5-30 rather than the less stringent standards of O.C.G.A. § 11-2-201. Beaulieu of Am., Inc. v. Coronet Indus., Inc., 173 Ga. App. 556, 327 S.E.2d 508 (1985).
Parol evidence may not supply essential elements of contract.
- Parol evidence is not admissible to supply any missing essential elements of a contract required to be in writing by the statute of frauds. Sawyer v. Roberts, 208 Ga. App. 870, 432 S.E.2d 610 (1993).
Written contract within statute of frauds cannot be modified by subsequent agreement in parol. Sanders v. Vaughn, 223 Ga. 274, 154 S.E.2d 616 (1967); Payne v. Robertson, Beiter & Conner, Inc., 133 Ga. App. 502, 211 S.E.2d 440 (1974); Littman v. Suburban Opticians, 244 Ga. 702, 261 S.E.2d 607 (1979).
Contract required by statute of frauds to be in writing cannot be modified by subsequent agreement in parol. B-Lee's Sales Co. v. Shelton, 141 Ga. App. 870, 234 S.E.2d 702 (1977).
Written agreement not modifiable by oral statements.
- Contract for sale of land which must, under law be in writing, and which accordingly is put in writing and duly executed, cannot be subsequently modified by parol agreement. Willis v. Fields, 132 Ga. 242, 63 S.E. 828 (1909); Moore v. Collier, 133 Ga. 762, 66 S.E. 1080 (1910); Jarman v. Westbrook, 134 Ga. 19, 67 S.E. 403 (1910); Elrod v. Camp, Flanigan & Toole, 150 Ga. 48, 102 S.E. 357 (1920).
Contract required by statute of frauds to be in writing may not be changed as to its nature and terms by subsequent oral agreement. Planters Cotton-Oil Co. v. Bell, 54 Ga. App. 433, 188 S.E. 41 (1936).
Contract which must, under statute of frauds, be in writing, and which accordingly is put in writing and duly executed, cannot be subsequently modified by parol agreement. Gulf Oil Corp. v. Willcoxon, 211 Ga. 462, 86 S.E.2d 507 (1955).
Evidence of antagonistic and inconsistent understanding.
- Evidence as to an alleged understanding which is antagonistic to and inconsistent with the terms of the instrument is inadmissible to vary such terms and legally insufficient to sustain a defense of fraud. Curtis v. First Nat'l Bank, 158 Ga. App. 379, 280 S.E.2d 404 (1981).
Modifications of agreements within statute must be written.
- When contract is required to be in writing, modification of the contract must also be in writing. Houston v. Jefferson Std. Life Ins. Co., 119 Ga. App. 729, 168 S.E.2d 843 (1969).
As the contract of guaranty had to be in writing under the statute of frauds, so likewise, under the general rule, any proposed modification thereof, to be effective, must also have been in writing. Hendricks v. Enterprise Fin. Corp., 199 Ga. App. 577, 405 S.E.2d 566 (1991).
Mistake is ground for reformation of agreement within statute.
- Agreements, whether executed or executory, within or without statute of frauds, whether for conveyance of real or personal property, will be reformed by courts of equity, on ground of mistake. Head v. Stephens, 215 Ga. 184, 109 S.E.2d 772 (1959), later appeal, 218 Ga. 191, 126 S.E.2d 623 (1962).
Constructive trusts are implied trusts, and are not within statute of frauds. Williams v. Whitfield, 242 Ga. 639, 250 S.E.2d 486 (1978).
Generally compromise agreements need not be in writing unless subject matter thereof is within statute of frauds or local statutes require compromises to be in writing. Hale v. Lipham, 61 Ga. App. 191, 6 S.E.2d 115 (1939), later appeal, 64 Ga. App. 796, 14 S.E.2d 236 (1941).
Authority to execute contract required by law to be in writing must be in writing. Hubert Realty Co. v. Bland, 79 Ga. App. 321, 53 S.E.2d 691 (1949); Nalley v. Whitaker, 102 Ga. App. 230, 115 S.E.2d 790 (1960).
Authority of agent executing contract within statute of frauds must be in writing. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935). But see Brandon v. Pritchett, 126 Ga. 286, 55 S.E. 241, 7 Ann. Cas. 1093 (1906).
Authority to make memorandum required by statute may be conferred by parol.
- There is no statute in this state requiring authority to make memorandum required by statute of frauds to be in writing, and such authority may be conferred by parol. Brandon v. Pritchett, 126 Ga. 286, 55 S.E. 241, 7 Ann. Cas. 1093 (1906), disagreed with, Byrd v. Piha, 165 Ga. 397, 141 S.E. 48 (1927).
Mere effort to orally ratify such authority will not suffice. Hubert Realty Co. v. Bland, 79 Ga. App. 321, 53 S.E.2d 691 (1949). But see Union Camp Corp. v. Dyal, 460 F.2d 678 (5th Cir.), cert. denied, 409 U.S. 849, 93 S. Ct. 56, 34 L. Ed. 2d 90 (1972).
Parol ratification of agent's unauthorized written contract binds owner.
- Parol ratification of contract for sale of land, made by one without authority assuming to act as agent in behalf of owner is valid and binding upon owner, providing agent signed memorandum which in the memorandum's terms complied with provisions of statute of frauds, which showed upon the memorandum's face that the memorandum was executed in behalf of owner. Brandon v. Pritchett, 126 Ga. 286, 55 S.E. 241, 7 Ann. Cas. 1093 (1906), disagreed with, Byrd v. Piha, 165 Ga. 397, 141 S.E. 48 (1927).
One dealing with agent charged with notice that authority must be in writing. Nalley v. Whitaker, 102 Ga. App. 230, 115 S.E.2d 790 (1960).
One entering into 15-year lease with agent is charged with notice that agent's authority to execute lease is required by law to be in writing and is under duty to inquire and ascertain whether such written authority exists and what limits of authority are, and such person is guilty of negligence in failing to make such inquiry. Union Camp Corp. v. Dyal, 460 F.2d 678 (5th Cir.), cert. denied, 409 U.S. 849, 93 S. Ct. 56, 34 L. Ed. 2d 90 (1972).
Compromise of pending cause by parties and attorneys, performed within reasonable time, need not be written.
- When agreement for compromise of pending cause is made by parties and attorneys, whereby one party is to do certain acts, such agreement, upon performance or offer to perform according to the agreement's terms within reasonable time, becomes binding on parties, and puts end to original subject matter of controversy. Such an agreement need not be in writing. Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969).
Question of mutuality is distinct and apart from any question that might arise under statute. Johnston v. Trippe, 33 F. 530 (N.D. Ga. 1887).
Court required to submit statute of frauds defense to jury.
- See National Indep. Theatre Exhibitors, Inc. v. Charter Fin. Group, Inc., 747 F.2d 1396 (11th Cir. 1984), cert. denied sub nom. Patterson v. National Indep. Theatre Exhibitors, Inc., 471 U.S. 1056, 105 S. Ct. 2120, 85 L. Ed. 2d 484 (1985).
Sub-subcontractor's oral agreement held enforceable.
- Sub-subcontractor's agreement with subcontractor to complete certain construction work and to submit bills to the subcontractor for the subcontractor's equipment and labor was not within the statute of frauds, and the fact that it was an oral contract did not make the contract unenforceable. Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. 119, 485 S.E.2d 264 (1997).
Parol evidence properly excluded.
- Because the lease was required by the statute of frauds to be in writing, the lease could not be modified by an oral agreement, and the trial court did not err in excluding parol evidence of the alleged oral agreements between the parties. Citrus Tower Blvd. Imaging Ctr. v. David S. Owens, MD, PC, 325 Ga. App. 1, 752 S.E.2d 74 (2013).
Cited in Baker, Wilcox & Co. v. Herndon, 17 Ga. 568 (1855); Sorrell v. Jackson, 30 Ga. 901 (1860); Black v. McBain, 32 Ga. 128 (1861); D. Goode & Son v. Rawlins, 44 Ga. 593 (1872); Finney v. Cadwallader, 55 Ga. 75 (1875); Wimberly v. Bryan, 55 Ga. 198 (1875); Reed v. Thomas & McNeal, 66 Ga. 595 (1881); Johnson v. Latimer, 71 Ga. 470 (1883); Wooten v. Wilcox, Stilson & Co., 87 Ga. 474, 13 S.E. 595 (1891); Howell v. Shewell, 96 Ga. 454, 23 S.E. 310, 51 Am. St. R. 148 (1895); Strauss v. Garrett & Sons, 101 Ga. 307, 28 S.E. 850 (1897); Corbin v. Durden, 126 Ga. 429, 55 S.E. 30 (1906); Kinderland v. Kirk, 131 Ga. 454, 62 S.E. 582 (1908); Hill v. Jones, 7 Ga. App. 394, 66 S.E. 1099 (1910); Hammond v. Hammond, 135 Ga. 768, 70 S.E. 588 (1911); Pidcock v. Nace, 14 Ga. App. 183, 80 S.E. 526 (1914); Mims v. Gillis, 19 Ga. App. 53, 90 S.E. 1035 (1916); Moore v. Adams, 153 Ga. 709, 113 S.E. 383, 23 A.L.R. 925 (1922); Sutherland v. Terrell, 30 Ga. App. 134, 118 S.E. 69 (1923); Killarney Realty Co. v. Wimpey, 30 Ga. App. 390, 118 S.E. 581 (1923); Armstrong v. Reynolds, 33 Ga. App. 27, 125 S.E. 512 (1924); Beasely v. Howard, 34 Ga. App. 102, 128 S.E. 203 (1925); Pope v. Ellis, 34 Ga. App. 185, 129 S.E. 11 (1925); Kennington v. Small, 36 Ga. App. 176, 136 S.E. 326 (1926); Gragg v. Hall, 164 Ga. 628, 139 S.E. 339 (1927); Scheuer Bros. & Co. v. Hushinsky, 37 Ga. App. 318, 140 S.E. 394 (1927); Scott v. Williams, 167 Ga. 386, 145 S.E. 651 (1928); Chenoweth v. Williams, 39 Ga. App. 344, 147 S.E. 180 (1929); Eberhart v. Texas Co., 36 F.2d 198 (5th Cir. 1929); Baldwin v. McLendon, 170 Ga. 437, 153 S.E. 18 (1930); Elrod v. McConnell, 170 Ga. 892, 154 S.E. 449 (1930); O'Farrell v. Willoughby, 171 Ga. 149, 154 S.E. 911 (1930); Giradot v. Giradot, 172 Ga. 230, 157 S.E. 282 (1931); Dixon v. Ernest L. Rhodes & Co., 44 Ga. App. 678, 162 S.E. 716 (1932); Wright v. Harber, 175 Ga. 696, 165 S.E. 616 (1932); Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933); Broyles v. Haas, 48 Ga. App. 321, 172 S.E. 742 (1934); Pope v. Barnett, 50 Ga. App. 199, 177 S.E. 358 (1934); Douglas v. Austin-Western Rd. Mach. Co., 180 Ga. 29, 177 S.E. 912 (1934); Marston v. Downing Co., 73 F.2d 94 (5th Cir. 1934); Gaskins v. Moore, 50 Ga. App. 529, 179 S.E. 422 (1935); Pate v. Carrollton Clinic, 52 Ga. App. 774, 184 S.E. 780 (1936); Neuhoff v. Swift & Co., 54 Ga. App. 651, 188 S.E. 831 (1936); Cary v. Neel, 54 Ga. App. 860, 189 S.E. 575 (1936); Dameron v. Liberty Nat'l Life Ins. Co., 56 Ga. App. 257, 192 S.E. 446 (1937); Kontos v. Jordan, 57 Ga. App. 267, 195 S.E. 210 (1938); Neely v. Sheppard, 185 Ga. 771, 196 S.E. 452 (1938); Hale v. Lipham, 61 Ga. App. 191, 6 S.E.2d 115 (1939); Pryor v. Cureton, 186 Ga. 892, 199 S.E. 175 (1938); Averitt v. Swainsboro Methodist Church, 190 Ga. 549, 9 S.E.2d 888 (1940); Feagin v. Georgia-Carolina Inv. Co., 63 Ga. App. 815, 11 S.E.2d 813 (1940); West v. Vandiviere, 192 Ga. 90, 14 S.E.2d 711 (1941); Cleapor v. Atlanta, B. & C.R.R., 123 F.2d 374 (5th Cir. 1941); Atkinson v. England, 194 Ga. 854, 22 S.E.2d 798 (1942); Meeks v. Adams La. Co., 49 F. Supp. 489 (S.D. Ga. 1943); Mays v. Perry, 196 Ga. 729, 27 S.E.2d 698 (1943); Myers v. Adcock, 198 Ga. 180, 31 S.E.2d 160 (1944); Hotel Candler, Inc. v. Candler, 198 Ga. 339, 31 S.E.2d 693 (1944); Hall v. Turner, 198 Ga. 763, 32 S.E.2d 829 (1945); Green v. Ford, 72 Ga. App. 681, 34 S.E.2d 913 (1945); Minor v. Sutton, 73 Ga. App. 253, 36 S.E.2d 158 (1945); Waller v. American Life Ins. Co., 75 Ga. App. 76, 41 S.E.2d 910 (1947); Smith v. Knight, 75 Ga. App. 178, 42 S.E.2d 570 (1947); Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947); Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947); Wells v. H.W. Lay & Co., 78 Ga. App. 364, 50 S.E.2d 755 (1948); Larkins v. Boyd, 205 Ga. 69, 52 S.E.2d 307 (1949); Barron v. Anderson, 205 Ga. 487, 53 S.E.2d 682 (1949); Monroe v. Goldberg, 80 Ga. App. 770, 57 S.E.2d 448 (1950); Great Am. Indem. Co. v. Horkan, 206 Ga. 451, 57 S.E.2d 487 (1950); Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 58 S.E.2d 383 (1950); Alderman v. Crenshaw, 84 Ga. App. 344, 66 S.E.2d 265 (1951); Harris v. Underwood, 208 Ga. 247, 66 S.E.2d 332 (1951); Fimian v. Guy F. Atkinson Co., 209 Ga. 113, 70 S.E.2d 762 (1952); Green v. W.A. Lathem & Sons, 86 Ga. App. 335, 71 S.E.2d 790 (1952); Tompkins v. Tompkins, 88 Ga. App. 563, 76 S.E.2d 819 (1953); Wolf v. Arant, 88 Ga. App. 568, 77 S.E.2d 116 (1953); United States v. Ridley, 120 F. Supp. 530 (N.D. Ga. 1954); Gulf Oil Corp. v. Willcoxon, 211 Ga. 462, 86 S.E.2d 507 (1955); Williams v. Appliances, Inc., 91 Ga. App. 608, 86 S.E.2d 632 (1955); Wilson v. Whitmire, 212 Ga. 287, 92 S.E.2d 20 (1956); Miller v. Shaw, 212 Ga. 302, 92 S.E.2d 98 (1956); Hay v. Butts, 95 Ga. App. 285, 97 S.E.2d 720 (1957); Home Bldg. & Loan Ass'n v. Hester, 213 Ga. 393, 99 S.E.2d 87 (1957); Cohen v. Pullman Co., 243 F.2d 725 (5th Cir. 1957); Ross & Ross Auctioneers v. Testa, 96 Ga. App. 821, 101 S.E.2d 767 (1958); Dell v. Kugel, 99 Ga. App. 551, 109 S.E.2d 532 (1959); Langford v. Milwaukee Ins. Co., 101 Ga. App. 92, 113 S.E.2d 165 (1960); Summerour v. Burt, 102 Ga. App. 687, 117 S.E.2d 542 (1960); Jennings v. Stewart, 106 Ga. App. 689, 127 S.E.2d 842 (1962); Snellgrove v. Plywood Supply Co., 108 Ga. App. 87, 131 S.E.2d 839 (1963); Henderson v. Henderson, 219 Ga. 310, 133 S.E.2d 251 (1963); Cox v. Wilson, 109 Ga. App. 652, 137 S.E.2d 47 (1964); Yarborough v. Horis A. Ward, Inc., 110 Ga. App. 295, 138 S.E.2d 439 (1964); Brown v. Wall, 110 Ga. App. 400, 138 S.E.2d 698 (1964); Adamson v. Maddox, 111 Ga. App. 533, 142 S.E.2d 313 (1965); Harper v. Georgian Villa, Inc., 222 Ga. 130, 149 S.E.2d 90 (1966); Moon v. Stone Mt. Mem. Ass'n, 223 Ga. 696, 157 S.E.2d 461 (1967); Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969); Goette v. Darvoe, 119 Ga. App. 320, 166 S.E.2d 912 (1969); Forest Servs., Inc. v. Fidelity & Cas. Co., 120 Ga. App. 600, 171 S.E.2d 743 (1969); Whitley v. Patrick, 226 Ga. 87, 172 S.E.2d 692 (1970); Rader v. Rayette Faberge, Inc., 123 Ga. App. 328, 181 S.E.2d 83 (1971); Paradies & Co. v. Southeastern Personnel, Inc., 124 Ga. App. 825, 186 S.E.2d 304 (1971); In re Am. Ventures, Inc., 340 F. Supp. 279 (N.D. Ga. 1971); Kenimer v. Thompson, 128 Ga. App. 253, 196 S.E.2d 363 (1973); Roberts v. Harrell, 230 Ga. 454, 197 S.E.2d 704 (1973); Builders Homes of Ga., Inc. v. Wallace Pump & Supply Co., 128 Ga. App. 779, 197 S.E.2d 839 (1973); Willis v. Kemp, 130 Ga. App. 758, 204 S.E.2d 486 (1974); Hendrix v. Scarborough, 131 Ga. App. 342, 206 S.E.2d 42 (1974); Walker v. Anderson, 131 Ga. App. 596, 206 S.E.2d 833 (1974); Plantation Land Co. v. Bradshaw, 232 Ga. 435, 207 S.E.2d 49 (1974); Robinson Explosives, Inc. v. Dalon Contracting Co., 132 Ga. App. 849, 209 S.E.2d 264 (1974); Blanton v. Moseley, 133 Ga. App. 144, 210 S.E.2d 368 (1974); Alodex Corp. v. Brawner, 134 Ga. App. 630, 215 S.E.2d 527 (1975); Columbia Nitrogen Corp. v. Dean's Power Oil Co., 136 Ga. App. 879, 222 S.E.2d 602 (1975); National Egg Co. v. Schneider Egg Co., 519 F.2d 1145 (5th Cir. 1975); Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975); Zorn v. Robertson, 237 Ga. 395, 228 S.E.2d 804 (1976); Ellis v. Savannah Bank & Trust Co., 237 Ga. 612, 229 S.E.2d 417 (1976); Haire v. Cook, 237 Ga. 639, 229 S.E.2d 436 (1976); Reynolds v. Estate of Reynolds, 238 Ga. 1, 230 S.E.2d 842 (1976); Smith v. Hornbuckle, 140 Ga. App. 871, 232 S.E.2d 149 (1977); Krueger v. Paul, 141 Ga. App. 73, 232 S.E.2d 611 (1977); Atlantis Realty Co. v. Morris, 142 Ga. App. 470, 236 S.E.2d 163 (1977); Lewis v. Dan Vaden Chevrolet, Inc., 142 Ga. App. 725, 236 S.E.2d 866 (1977); Bennett Oil Co. v. Harrell, 143 Ga. App. 268, 238 S.E.2d 267 (1977); Citizens & S. Bank v. Bailey, 144 Ga. App. 550, 241 S.E.2d 443 (1978); Rogers v. Joyner, 145 Ga. App. 179, 243 S.E.2d 249 (1978); Grace v. Roan, 145 Ga. App. 776, 245 S.E.2d 17 (1978); Crosby v. Jones, 241 Ga. 558, 246 S.E.2d 677 (1978); Moorman Ingram Tractors, Inc. v. Harrington Mfg. Co., 146 Ga. App. 398, 247 S.E.2d 159 (1978)
Hudson v. Venture Indus., Inc., 147 Ga. App. 31, 248 S.E.2d 9 (1978); Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800 (1978); Hudson v. Venture Indus., Inc., 243 Ga. 116, 252 S.E.2d 606 (1979); Garden of Eden, Inc. v. Eastern Sav. Bank, 244 Ga. 63, 257 S.E.2d 897 (1979); Knight v. Munday, 152 Ga. App. 406, 263 S.E.2d 188 (1979); Sellers v. Hall, 153 Ga. App. 189, 265 S.E.2d 81 (1980); Allen & Bean, Inc. v. American Bankers Ins. Co., 153 Ga. App. 617, 266 S.E.2d 295 (1980); Smith v. Jones, 154 Ga. App. 629, 269 S.E.2d 471 (1980); Coastal States Equip. Co. v. Heilweil Indus., Inc., 155 Ga. App. 896, 273 S.E.2d 627 (1980); Wall v. Federal Land Bank, 156 Ga. App. 368, 274 S.E.2d 753 (1980); Gunter v. Hutcheson, 492 F. Supp. 546 (N.D. Ga. 1980); Sabin Meyer Regional Sales Corp. v. Citizens Bank, 502 F. Supp. 557 (N.D. Ga. 1980); Wiggins v. White, 157 Ga. App. 49, 276 S.E.2d 104 (1981); Good v. Tri-Cep, Inc., 248 Ga. 684, 285 S.E.2d 527 (1982); Mynatt v. Tom Washburn & Assocs., 161 Ga. App. 168, 288 S.E.2d 122 (1982); McLain v. Heard, 162 Ga. App. 480, 291 S.E.2d 781 (1982); Allen v. Brackett, 165 Ga. App. 415, 301 S.E.2d 486 (1983); Sierra Assocs., Ltd. v. Continental Ill. Nat'l Bank & Trust Co., 169 Ga. App. 784, 315 S.E.2d 250 (1984); Llop v. McDaniel, Chorey & Taylor, 171 Ga. App. 400, 320 S.E.2d 244 (1984); B.J. Howard Corp. v. Skinner, Wilson & Strickland, 172 Ga. App. 180, 322 S.E.2d 306 (1984); McCumbers v. Trans-Columbia, Inc., 172 Ga. App. 275, 322 S.E.2d 516 (1984); Beckworth v. Beckworth, 255 Ga. 241, 336 S.E.2d 782 (1985); In re Int'l Horizons, Inc., 51 Bankr. 747 (Bankr. N.D. Ga. 1985); Walker v. Williams, 177 Ga. App. 830, 341 S.E.2d 487 (1986); Wells v. W.S. Williams, Jr., Inc., 178 Ga. App. 202, 342 S.E.2d 384 (1986); Dobbs v. Titan Properties, Inc., 178 Ga. App. 389, 343 S.E.2d 419 (1986); 20/20 Vision Ctr., Inc. v. Hudgens, 256 Ga. 130, 345 S.E.2d 330 (1986); Fowler v. Essex Co., 179 Ga. App. 597, 347 S.E.2d 348 (1986); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986); Johnson v. Sackett, 256 Ga. 552, 350 S.E.2d 419 (1986); Management Recruiters of Atlanta N., Inc. v. J & B Smith Co., 184 Ga. App. 662, 362 S.E.2d 462 (1987); Dickens v. Calhoun First Nat'l Bank, 189 Ga. App. 798, 377 S.E.2d 715 (1989); Moran v. NAV Servs., 189 Ga. App. 825, 377 S.E.2d 909 (1989); Gigandet v. Lighting Galleries, Inc., 191 Ga. App. 536, 382 S.E.2d 600 (1989); Stolz v. Shulman, 191 Ga. App. 864, 383 S.E.2d 559 (1989); K's Co. v. Galleria Mall Assocs., 192 Ga. App. 866, 386 S.E.2d 672 (1989); Bread of Life Baptist Church v. Price, 194 Ga. App. 693, 392 S.E.2d 15 (1990); Foreman v. Eastern Foods, Inc., 195 Ga. App. 332, 393 S.E.2d 695 (1990); Baxley Veneer & Clete Co. v. Maddox, 198 Ga. App. 235, 401 S.E.2d 282 (1990); Wimpey v. Bissinger, 198 Ga. App. 784, 403 S.E.2d 78 (1991); Baxley Veneer & Clete Co. v. Maddox, 261 Ga. 309, 404 S.E.2d 554 (1991); Cohen v. William Goldberg & Co., 202 Ga. App. 172, 413 S.E.2d 759 (1991); White House, Inc. v. Winkler, 202 Ga. App. 603, 415 S.E.2d 185 (1992); Daniell v. Clein, 206 Ga. App. 377, 425 S.E.2d 344 (1992); Golden v. National Serv. Indus., 210 Ga. App. 53, 435 S.E.2d 270 (1993); Breckenridge Creste Apts., Ltd. v. Citicorp Mtg., Inc., 826 F. Supp. 460 (N.D. Ga. 1993); Cherokee Falls Invs., Inc. v. Smith, 213 Ga. App. 603, 445 S.E.2d 572 (1994); Peach State Meat Co. v. Excel Corp., 860 F. Supp. 849 (M.D. Ga. 1994); Toncee, Inc. v. Thomas, 219 Ga. App. 539, 466 S.E.2d 27 (1995); Barnes v. Whatley, 221 Ga. App. 110, 470 S.E.2d 498 (1996); Acuff v. Proctor, 267 Ga. 85, 475 S.E.2d 616 (1996); Sharp v. Sumner, 272 Ga. 338, 528 S.E.2d 791 (2000); S & A Indus. v. Bank Atlanta, 247 Ga. App. 377, 543 S.E.2d 743 (2000); Paul Dean Corp. v. Kilgore, 252 Ga. App. 587, 556 S.E.2d 228 (2001); Ades v. Werther, 256 Ga. App. 8, 567 S.E.2d 340 (2002); Overton Apparel, Inc. v. Russell Corp., 264 Ga. App. 306, 590 S.E.2d 260 (2003); Miller v. Lomax, 266 Ga. App. 93, 596 S.E.2d 232 (2004); Henry v. Blankenship, 284 Ga. App. 578, 644 S.E.2d 419 (2007); Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 765 S.E.2d 536 (2014); Cheeley Invs., L.P. v. Zambetti, 332 Ga. App. 115, 770 S.E.2d 350 (2015).
Writing Requirement Generally
Nature and purpose of writing required under statute see Virginia Lumber Corp. v. Williamson Tie Co., 44 Ga. App. 618, 162 S.E. 723 (1931).
Writing must be complete in itself, leaving nothing to rest in parol. F.C. Brooks & Sons v. Shell Oil Co., 226 Ga. 435, 175 S.E.2d 557 (1970).
Writing must be complete.
- Writings relied upon to remove transaction from statute of frauds must be complete in themselves, and must contain the entire agreement, and must disclose subject matter, parties thereto, and all terms of undertaking. Campbell Tile & Mantel Co. v. S.A. Lynch Enter. Fin. Corp., 45 Ga. App. 555, 165 S.E. 457 (1932).
To suffice as memorandum under statute, writing must be complete in itself, leaving nothing to rest in parol; entire agreement must be expressed in writing or writings relied upon to take transaction out of statute, and memorandum must disclose subject matter of contract, parties thereto, promise or undertaking, and terms and conditions. Graham v. Nash Loan Co., 51 Ga. App. 521, 181 S.E. 105 (1935).
When writings are relied upon to take transaction out of statute of frauds, the writings must be complete within themselves, must contain entire agreement, must disclose subject matter, parties thereto, and all terms of undertaking; such writings must in some way indicate not only who is promisor, but who is promisee, as well. Cashin v. Markwalter, 208 Ga. 444, 67 S.E.2d 226 (1951).
Writing or memorandum of contract, to meet requirements of statute of frauds, must be complete in itself, with nothing left to parol. It must show all terms of contract, parties, and their assent thereto, in addition to showing fact that there was a contract between the parties. Cofer v. Wofford Oil Co., 85 Ga. App. 444, 69 S.E.2d 674 (1952); American Std., Inc. v. Jessee, 150 Ga. App. 663, 258 S.E.2d 240 (1979).
In an action premised on allegations of a breach of a land sales contract between a group of sellers and an investor, because the only evidence showing any authority to act as an agent for the sellers was based on hearsay, and not on a writing, and no exception applied, two of the sellers were entitled to a directed verdict against the investor pursuant to O.C.G.A. § 13-5-30(4). Dunn v. Venture Bldg. Group, Inc., 283 Ga. App. 500, 642 S.E.2d 156 (2007).
Every essential element of contract must be expressed in writing to comply with statute. Tippins v. Phillips, 123 Ga. 415, 51 S.E. 410 (1905); Durham v. Davison, 156 Ga. 49, 118 S.E. 736 (1923); Massell Realty Co. v. Hanbury, 165 Ga. 534, 141 S.E. 653 (1928); Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).
Written memorandum cannot depend upon parol evidence to supply necessary or additional portions of contract but must be complete in itself. Hamby v. Truitt, 14 Ga. App. 515, 81 S.E. 593 (1914).
An interest rate which is designated with respect to the prime rate is a term "in writing" sufficient to satisfy the statute of frauds. Stewart v. National Bank, 174 Ga. App. 892, 332 S.E.2d 19 (1985).
Parol evidence admissible to clarify and explain ambiguities of written instrument. Williams v. Smith, 71 Ga. App. 632, 31 S.E.2d 873 (1944).
Trial court erred in granting a bank's motion for summary judgment in the bank's action for breach of a guaranty because parol testimony was admissible and created a genuine issue of material fact over whether the guaranty was executed after the bank had already extended credit to the underlying debtor, and thus over whether the guaranty was void for lack of consideration; as in the context of a deed, a witness is entitled to offer parol testimony that the guaranty was executed on a date other than the date inserted on the guaranty. Helton v. Jasper Banking Co., 311 Ga. App. 363, 715 S.E.2d 765 (2011).
Parol evidence admissible to prevent admission of defective writing.
- While parol evidence will never be admitted in aid of one who has incomplete writing, parol evidence will be admitted to defeat one who is attempting to impose upon court writing which is not really in compliance with statute. Turner v. Lorillard Co., 100 Ga. 645, 28 S.E. 383, 62 Am. St. R. 345 (1897).
Various writings cannot be connected by parol evidence.
- There may be various writings, provided the writings refer one to another, but the writings cannot be correlated and connected together by parol evidence. Industrial Welding & Tool Supplies, Inc. v. CIT Corp., 157 Ga. App. 611, 278 S.E.2d 50 (1981).
Effect of section on writings not purporting to be entire agreement between parties.
- Provision of former O.C.G.A. § 24-6-2 (see now O.C.G.A. § 24-3-2) that if a writing does not purport to be entire agreement between parties, parol evidence is admissible to prove other portions thereof not inconsistent with the writing, is inapplicable to a contract of guaranty because such contracts are required to be entirely in writing under O.C.G.A. § 13-5-30. Builder's Supply Corp. v. Taylor, 164 Ga. App. 127, 296 S.E.2d 417 (1982).
Essential elements of writings relied on to satisfy statute.
- When writings are relied on to take transaction out of statute of frauds the writings must: (a) identify buyer and seller; (b) describe subject matter of contract; and (c) name consideration. Powell v. Adderholdt, 230 Ga. 211, 196 S.E.2d 420 (1973).
For letters by and between parties to amount to written lease, the parties must disclose subject matter of contract, parties thereto, promise or undertaking, and terms and conditions. Peter E. Blum & Co. v. First Bank Bldg. Corp., 156 Ga. App. 680, 275 S.E.2d 751 (1980).
Requirements for valid contract for sale of real estate.
- To constitute valid sale of real estate which will support suit for specific performance, writing relied on to take transaction out of statute of frauds must: (a) identify buyer and seller; (b) describe subject matter of contract; and (c) name consideration. Pierce v. Rush, 210 Ga. 718, 82 S.E.2d 649 (1954).
Contract for sale of real estate is valid and binding if it is in writing, specifies parties, seller and buyer, identifies thing sold and contains agreement as to price to be paid. Morgan v. Hemphill, 214 Ga. 555, 105 S.E.2d 580, answer conformed to, 98 Ga. App. 732, 106 S.E.2d 865 (1958).
Contemporaneous writings.
- Signed, contemporaneous writings used to explain each other under former O.C.G.A. § 24-6-3 (see now O.C.G.A. § 24-3-3) complied with the statute of frauds whether or not the writings were cross-referenced. Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874 (1984).
To satisfy statute, memorandum must in some way indicate who are parties to contract. Maxwell v. Tucker, 118 Ga. App. 695, 165 S.E.2d 459 (1968).
Parties to contract must be identified.
- Memorandum relied upon to take sale at auction out of operation of statute of frauds must in some way indicate or show who are parties to contract; not only who is purchaser, but who is seller. Pierce v. Rush, 210 Ga. 718, 82 S.E.2d 649 (1954).
Any designation of vendors, vendees, lessors, or lessees, which clearly discloses the parties, is sufficient. Maxwell v. Tucker, 118 Ga. App. 695, 165 S.E.2d 459 (1968).
Writing within meaning of statute of frauds must bind party sought to be charged. Houston v. Jefferson Std. Life Ins. Co., 119 Ga. App. 729, 168 S.E.2d 843 (1969); Industrial Welding & Tool Supplies, Inc. v. CIT Corp., 157 Ga. App. 611, 278 S.E.2d 50 (1981).
Although both parties need not assent in writing, writing must show that both did assent.- When party relies upon written memorandum, that party must show not only terms of contract, but also that both parties assented to those terms. It is not necessary that both parties assent in writing, but writing must show that both parties assented. Otherwise writing does not evidence contract. In re Hartley, 29 F.2d 916 (M.D. Ga. 1929).
Writing must itself or with other writings identify debt without parol evidence.
- Writing referred to in statute of frauds, must either itself or in connection with other writings identify debt which is subject of promise, without aid of parol evidence. Little v. Whiting ex rel. Peerless Bread Mach. Co., 42 Ga. App. 146, 155 S.E. 345 (1930); Caldwell v. Rogers, 140 Ga. App. 231, 230 S.E.2d 368 (1976).
Entries in corporate records may suffice as writing.
- All that statute of frauds requires is written evidence of agreement. Memorandum may even consist of entries made by party to be charged on party or party's agent's books, so entries in records of corporation may prove contract by the corporation. Massell Realty Co. v. Hanbury, 165 Ga. 534, 141 S.E. 653 (1928).
Satisfaction of statute with several writings which together contain entire agreement.
- Statute of frauds does not require that all terms of contract be agreed to or written down at one and the same time, nor on one piece of paper; but where memorandum of bargain is found on separate pieces of paper, which contain whole bargain, the papers form together such memorandum as will satisfy the statute, provided contents of signed paper make such reference to other written paper or papers as to enable court to construe whole of papers together as containing all terms of bargain. North & Co. v. Mendel & Bro., 73 Ga. 400, 54 Am. R. 879 (1884); Turner v. Lorillard Co., 100 Ga. 645, 28 S.E. 383, 62 Am. St. R. 345 (1897); Killarney Realty Co. v. Wimpey, 30 Ga. App. 390, 118 S.E. 581 (1923); Houston v. Jefferson Std. Life Ins. Co., 119 Ga. App. 729, 168 S.E.2d 843 (1969).
Statute of frauds does not require that all the terms of the contract should be agreed to or written down at one and the same time, nor on one piece of paper. But when the memorandum of the bargain is found on separate pieces of paper, and when these papers contain the whole bargain, the papers form together such a memorandum as will satisfy the statute, provided the contents of the signed paper make such references to the other written paper or papers as to enable the court to construe the whole of the papers together as containing all the terms of the bargain. Industrial Welding & Tool Supplies, Inc. v. CIT Corp., 157 Ga. App. 611, 278 S.E.2d 50 (1981).
Statute of frauds, O.C.G.A. § 13-5-30, did not require that all the terms of a contract should be agreed to or written down at one and the same time, nor on one piece of paper; but where the memorandum or the bargain was found on separate pieces of paper, and where these papers contained the whole bargain, the papers formed together such a memorandum as would satisfy the statute, provided the contents of the signed paper made such references to the other written paper or papers as to enable the court to construe the whole of the papers together as containing all the terms of the bargain. Cox v. U.S. Mkts., 278 Ga. App. 287, 628 S.E.2d 701 (2006).
Satisfaction of statute by part performance.
- Part performance is not sufficient to remove an oral agreement from the requirements of paragraph (6) of O.C.G.A. § 13-5-30 unless the part performance is consistent with the presence of a contract and inconsistent with the lack of a contract. Alkeril Chems., Inc. v. O'Lenick, 202 Ga. App. 230, 414 S.E.2d 257 (1991), cert. denied, 202 Ga. App. 905, 414 S.E.2d 257 (1992).
Statute not satisfied when parol evidence necessary to connect signed paper with other unsigned ones. If it is necessary to adduce parol evidence to connect signed paper with others unsigned, by reason of absence of any internal evidence in signed paper to show reference to or connection with unsigned papers, then the several papers taken together do not constitute written memorandum of bargain so as to satisfy statute. North & Co. v. Mendel & Bro., 73 Ga. 400, 54 Am. R. 879 (1884); Turner v. Lorillard Co., 100 Ga. 645, 28 S.E. 383, 62 Am. St. R. 345 (1897); Killarney Realty Co. v. Wimpey, 30 Ga. App. 390, 118 S.E. 581 (1923).
Oral extension of credit unenforceable.
- Mere act of lending any sum to a borrower will not serve to render enforceable an alleged oral agreement to lend some additional sum, nor will it allow for the predication of fraud since such an agreement is unenforceable from the agreement's inception. Studdard v. George D. Warthen Bank, 207 Ga. App. 80, 427 S.E.2d 58 (1993).
Equal dignity rule.
- Verbal authorization from a decedent was sufficient to create a valid agency relationship between the decedent and a brother and a wife so as to allow the brother and wife to withdraw money for the decedent from the accounts on a periodic basis; the equal dignity rule did not apply in this case because the instruments at issue were not subject to the statute of frauds outlined in O.C.G.A. § 13-5-30. Rowland v. Rowland, F. Supp. 2d (N.D. Ga. Nov. 16, 2005).
Seller did not need to rely on oral promise to pay.
- Gasoline supplier was not justified in relying on an oral promise of a service station lessee with respect to the payment of a commission to the supplier, and to pay certain incentive money that the supplier owed to a gas retailer, if a service station was re-branded to another retailer's name, as it was an oral promise pursuant to paragraphs (2) and (5) of O.C.G.A. § 13-5-30. Sommers Co. v. Moore, 275 Ga. App. 604, 621 S.E.2d 789 (2005).
Email negotiating settlement did not violate statute of frauds.
- Settlement agreement did not violate the statute of frauds, O.C.G.A. § 13-5-30(4), because the email exchange between the parties was sufficient to memorialize the terms of the settlement agreement and render the agreement an enforceable contract. Johnson v. DeKalb County, 314 Ga. App. 790, 726 S.E.2d 102 (2012).
Promises to Answer for Debts of Another
1. In General
Contracts to answer for debt of another must be in writing to bind promisor. Scoggins v. Hill, 90 Ga. App. 283, 82 S.E.2d 739 (1954).
All contracts or obligations to pay debts of another must be reduced to writing. Alsobrook v. Taylor, 181 Ga. 10, 181 S.E. 182 (1935).
Statute of frauds requires a promise to answer for the debt of another to be in writing. Pope v. Triangle Chem. Co., 157 Ga. App. 386, 277 S.E.2d 758 (1981).
Promise within paragraph (2) of O.C.G.A.
§ 13-5-30 must be written and for consideration. - Promise to answer for debt, default, or miscarriage of another, in order to be binding, must be in writing and be supported by consideration. It is nudum pactum unless some benefit accrues to debtor or promisor. Fred Didschuneit & Son v. Enochs Lumber & Mfg. Co., 42 Ga. App. 527, 156 S.E. 720 (1931).
Absence of notary seal and signature of guarantors.
- Jury verdict imposing liability on guarantors for a debt of a corporation was reversed since there was no evidence that the guarantors wrote their names on or otherwise signed the guaranty, since a witness's opinion that the guaranty "appeared" to be executed by the guarantors lacked any basis whatsoever, other than the fact that the guarantors' names appeared on the signature lines, and since notary attestation was invalid, if for no other reason, because the guaranty did not contain a notary seal. Friedrich v. APAC-Georgia, Inc., 265 Ga. App. 769, 595 S.E.2d 620 (2004).
Absence of written agreement.
- Even if there had been an implied contract between a priest and the priest's common-law wife, under the statute of frauds the priest's employer was not liable for debt in the absence of a written agreement to assume the debt. Long v. Marino, 212 Ga. App. 113, 441 S.E.2d 475 (1994).
Trial court properly determined that a child's claim that the child's parent agreed to make payments which the child owed on a promissory note, in order to preserve the child's interest in land, was unenforceable under O.C.G.A. § 13-5-30 because the child was unable to produce a writing signed by the parent which confirmed the child's claim. Revis v. Jowers, 264 Ga. App. 13, 589 S.E.2d 657 (2003).
Application to hypothecation agreements.- Although suretyship provision of the statute of frauds typically governed traditional guarantees, the court believed its precepts extended to hypothecation agreements. Baker v. Talon DN Invs. I, LLC (In re Synergy Inv. Group, LLC), Bankr. (Bankr. N.D. Ga. Mar. 18, 2014).
Parol agreement, absolute or conditional, to pay debt of third person, is void. Johnson v. Morris, 21 Ga. 238 (1857).
Parol evidence.
- Trial court erred in denying a guarantor's motion for summary judgment on grounds that the guaranty was unenforceable by the creditor under the statute of frauds because the guarantor was insufficiently identified in the guaranty; the trial court was not authorized to determine the identity of the guarantor by inference, as this entailed consideration of impermissible parol evidence. Haralson v. John Deere Co., 262 Ga. App. 385, 585 S.E.2d 711 (2003).
When a promissory note and personal guaranty were read together, it was clear that "L. Henry Enterprises, Inc." and "Larry Henry Enterprises, Inc." were used interchangeably in the understanding and intention of the parties and the fact that the corporate name differed slightly between the documents did not provide the borrowers the opportunity to escape liability; as a result, the trial court properly granted summary judgment to the lender with regard to the lender's suit against the borrowers upon default on the note. L. Henry Enters. v. Verifone, Inc., 273 Ga. App. 195, 614 S.E.2d 841 (2005).
Guaranties from 2008 were not effective under O.C.G.A. § 13-5-30(2) because the guaranties did not identify a principal debtor by name, and parol evidence was not admissible to supply the name of the principal debtor. The part performance exception to the Statute of Frauds could not have been applied again by an appellate court. Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 316 Ga. App. 496, 729 S.E.2d 612 (2012).
Substitution of third party for promisor.
- Promise to pay the debt of another which is an original undertaking by which the promisor becomes liable is not within the statute of frauds, i.e., those promises required by the statute to be in writing do not include an original undertaking in which the new promisor, for valuable consideration, substitutes the promisor as the party who is to perform and the original promisor is released. Donald H. Gordon Co. v. Carswell, 184 Ga. App. 701, 362 S.E.2d 483 (1987).
When a creditor, the creditor's debtor, and a third person who owes the debtor agree in parol that such third person shall be substituted for the debtor and that the latter shall be released, to take such a transaction without the operation of the statute of frauds, it must appear that the person substituted for the debtor was, by agreement between the creditor, the debtor, and the third party, substituted for the original debtor, who was released from the promise. Donald H. Gordon Co. v. Carswell, 184 Ga. App. 701, 362 S.E.2d 483 (1987).
Promise to answer for debt, default, or miscarriage of another means some definite person. Promise made by individual for unnamed person and in undertaking in which promisor is primarily liable does not come under provisions of statute. Darby v. Saffold & Sharpe, 49 Ga. App. 81, 174 S.E. 250 (1934); Scott Hudgens Realty & Mtg., Inc. v. Executive Action, Inc., 125 Ga. App. 81, 186 S.E.2d 504 (1971).
If guaranty omitted name of principal debtor, the guaranty was unenforceable, and the failure of a document to state the identity of the entity whom the guarantor agreed to indemnify was fatal; because a personal guaranty did not identify the principal debtor by name, the denial of the guarantors' summary judgment motion was error. McDonald v. Ferguson Enters., 274 Ga. App. 526, 618 S.E.2d 45 (2005).
Building material suppliers could not recover on a personal guaranty allegedly signed by the former president of a builder because the guaranty was fatally flawed; the guaranty failed to identify the principal debtor. Atlanta Glass, Inc. v. Tucker, 291 Ga. App. 760, 663 S.E.2d 272 (2008).
Liability for spouse's pre-marital obligations.
- Member of an electric cooperative was not liable for payment of past due amount owed on an account established by member's wife prior to the marriage. Walton Elec. Membership Corp. v. Snyder, 226 Ga. App. 673, 487 S.E.2d 613 (1997), aff'd, 270 Ga. 62, 508 S.E.2d 167 (1998).
Cancellation of guaranty not required to be in writing.
- In a creditor's suit on a guaranty, although the guaranty agreement was required to be in writing, a writing was not necessary if the parties mutually agreed to cancel the executory guaranty; however, there was an issue of fact as to whether there was a meeting of the minds between the guarantor and the creditor's manager. Crop Production Services, Inc. v. Moye, 345 Ga. App. 228, 812 S.E.2d 565 (2018).
2. Writing
Essentials of writing evidencing promise within scope of paragraph (2) of O.C.G.A. § 13-5-30. - To bind promisor, written promise of one who undertakes to pay debt of another under the statute of frauds must contain clear statement of agreement, indicate knowledge of amount promised to be paid, and show who is promisee, as well as promisor. Terms of promise to assume debt of another cannot be settled by parol. Johnson v. Rycroft, 4 Ga. App. 547, 61 S.E. 1052 (1908).
In order to bind promisor, written promise of one who undertakes to pay debt of another must contain clear statement of agreement, indicate knowledge of amount promised to be paid, and show who is promisee as well as promisor; agreement may be gathered from letters written by promisor. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).
Under paragraph (2) of the statute of frauds, written promise must contain clear statement of agreement, indicate knowledge of amount promised to be paid, and show who is promisee as well as promisor. Caldwell v. Rogers, 140 Ga. 231, 230 S.E.2d 368 (1976).
Terms of promise to assume debt of another cannot be established by parol. Caldwell v. Rogers, 140 Ga. App. 231, 230 S.E.2d 368 (1976).
Written promise to pay debt of another must identify debt without aid of parol evidence.
- Writing relied on to satisfy provision of statute of frauds requiring that promise to pay debt of another be in writing must either itself or in connection with other writings identify debt which is subject of promise, without aid of parol evidence. Pearce & Co. v. Stone Tobacco, 125 Ga. 444, 54 S.E. 103 (1906); Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).
Writing relied on to satisfy provision of statute of frauds which requires promise to answer for debt, default, or miscarriage of another to be in writing must either itself or in connection with other writings identify debt which is subject of promise, without aid of parol evidence. Graham v. Nash Loan Co., 51 Ga. App. 521, 181 S.E. 105 (1935).
Writing under paragraph (2) of O.C.G.A.
§ 13-5-30 must state time when debt due. - If writing under paragraph (2) of the statute of frauds does not set forth time at which debt becomes due, it is not complete within itself; it fails to satisfy statute of frauds. Caldwell v. Rogers, 140 Ga. App. 231, 230 S.E.2d 368 (1976).
Incomplete writing was unenforceable.
- Writing which left blank both the name of the principal debtor and the name of the person individually guaranteeing the indebtedness was unenforceable. Sysco Food Servs., Inc. v. Coleman, 227 Ga. App. 460, 489 S.E.2d 568 (1997).
Signed addendum sufficient.
- Even though a personal guarantee was not signed, a separate, signed addendum thereto satisfied the statute of frauds writing requirement because the guarantee and addendum made reference to each other. Charles S. Martin Distrib. Co. v. Berhardt Furn. Co., 213 Ga. App. 481, 445 S.E.2d 297 (1994).
Guaranty agreement sufficient.
- Trial court did not err in granting summary judgment to the promisee where, in the guaranty agreements at issue, the guarantor "unconditionally guaranteed the payment of the Promissory Note set forth above....," and the promissory note specified the name of the principal debtor. Roach v. C.L. Wigington Enters., 246 Ga. App. 36, 539 S.E.2d 543 (2000).
Guaranty agreement insufficient.
- Trial court did not err in granting partial summary judgment to the former business partners on the separate entity partners' counterclaim; the claim that the former business partners were liable for breach of an oral compensation agreement, regarding the one separate entity partner's claim for wages for operating the business was barred by the statute of frauds, as it involved a promise to answer for the debt of another, which was required to be in writing pursuant to O.C.G.A. § 15-5-30(2) and since nothing in the one separate entity partner's conduct was consistent with the lack of an employment agreement, the part performance doctrine could not be invoked as an exception to render the writing requirement unenforceable. Carter v. Parish, 274 Ga. App. 97, 616 S.E.2d 877 (2005).
Account books, per se, are not sufficient to charge defendant with debts and accounts of third persons. Bower v. Smith, 8 Ga. 74 (1850).
Company president's oral promise.
- Trial court did not err in holding that president and largest stockholder of company could be sued individually for payment of debts where credit was extended in reliance upon president's oral promise that president would be responsible for credit extended to company. Lindsey v. Heard Oil Co., 170 Ga. App. 572, 317 S.E.2d 597 (1984).
Claim for breach of oral guaranty did not arise since the corporate officer and owner of a mortgage company orally told investors that the officer would be personally obligated on each and every loan, would personally manage their money, and would be involved with the management of the corporation. Albee v. Krasnoff, 255 Ga. App. 738, 566 S.E.2d 455 (2002).
Loan servicer's repayment agreement unenforceable but promissory estoppel could apply.
- In a borrower's action against a loan servicer claiming that the servicer breached an agreement to allow the borrower to repay the loan and taxes with a specified payment, the agreement was unenforceable due to the statute of frauds, O.C.G.A. § 13-5-30, although the borrower had been given a payment schedule and coupon book at the specified payment. However, the borrower could pursue a promissory estoppel theory under O.C.G.A. § 13-3-44 due to the borrower's reliance on the servicer's representations. Zhong v. PNC Bank, N.A., 345 Ga. App. 135, 812 S.E.2d 514 (2018), cert. denied, No. S18C1034, 2018 Ga. LEXIS 696 (Ga. 2018), cert. denied, No. S18C1032, 2018 Ga. LEXIS 700 (Ga. 2018).
3. Application
Promise to pay another's debt must be collateral or secondary to require writing.
- Promise within paragraph (2) of statute of frauds is that collateral contract by which second promisor become bound along with original promise. Evans v. Griffin, 1 Ga. App. 327, 57 S.E. 921 (1907).
For promise to pay debt of another to be within statute of frauds the promise must be one which is collateral or secondary and is merely superadded to that of another. Scott Hudgens Realty & Mtg., Inc. v. Executive Action, Inc., 125 Ga. App. 81, 186 S.E.2d 504 (1971).
Promise which must be in writing under paragraph (2) of the statute of frauds is collateral promise, resulting in second promisor becoming bound along with original promisor. Ross v. W.P. Stephens Lumber Co., 138 Ga. App. 748, 227 S.E.2d 486 (1976).
Promise of surety is within statute.
- Promise of surety in order to be binding upon promisor must be in writing and signed by party to be charged therewith. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136, answer conformed to, 47 Ga. App. 665, 171 S.E. 143 (1933).
Guaranty contract.
- Lessor could not recover on an equipment lease guaranty because the guaranty omitted essential elements and the lease could not supply the missing elements since this required consideration of parol evidence which was inadmissible for a contract required by the statute of frauds to be in writing. Dabbs v. Key Equip. Fin., Inc., 303 Ga. App. 570, 694 S.E.2d 161 (2010).
Statute of frauds did not bar a landlord's claim on a guaranty because the guaranty identified the debt, and the assignment contemplated in the guaranty was documented by a written agreement; when read together the documents identified the principal debt as required by the statute of frauds and, in addition, the guaranty sufficiently identified the principal debtor and provided that the guarantor consented to any subsequent assignment. Patterson v. Bennett St. Props., 314 Ga. App. 896, 726 S.E.2d 147 (2012).
Court of appeals erred in holding that the guaranties were unenforceable under Georgia's statute of frauds because the corporate debtor, through the use of a trade name, was identified on the face of the guaranty as the principal debtor, and the law allowed an entity to enter binding legal contracts using a trade name; there was no missing essential element required to make the guaranty enforceable, and the writing requirement was satisfied; and, to the extent that the Playnation Play Systems, Inc. v. Jackson, 312 Ga. App. 340 (2011), held that the identification of the principal debtor by only its trade name rendered a contract of suretyship or guaranty unenforceable on its face pursuant to the statute of frauds, it was overruled. Colonial Oil Industries, Inc. v. Lynchar, Inc., 303 Ga. 839, 815 S.E.2d 917 (2018).
In an action on a promissory note, the trial court properly granted summary judgment to the bank because there was no dispute that the guarantors executed the note and the guarantees and that the partners failed to make all of the payments required by the written terms of the note, and any alleged modification in the terms of the note was not in writing. 280 Partners, LLC v. Bank of North Georgia, 352 Ga. App. 605, 835 S.E.2d 377 (2019).
Agreement to endorse notes in payment of another's debt to third person must be written. Massell Realty Co. v. Hanbury, 165 Ga. 534, 141 S.E. 653 (1928).
Agreement to pay account of another to prevent that person's prosecution must be written. Bush v. Roberts, 4 Ga. App. 531, 62 S.E. 92 (1908).
Owner's promise to pay for work done by plaintiff for contractor was within statute of frauds, and being in parol was invalid. Holcombe v. Parker, 99 Ga. App. 616, 109 S.E.2d 348 (1959).
Promise to pay another's debt whereby promisor becomes primarily liable, not within statute.
- Promise to pay debt of another arising out of some new and original consideration, benefit, or harm, moving between new contracting parties, is not within statute of frauds although it may be in form a promise to pay debt of another, and although performance of such new contract will have effect of extinguishing liability of original debtor. Thomason v. Pease Co., 47 Ga. App. 776, 171 S.E. 467 (1933).
Promise to pay debt of another which is an original undertaking by which promisor becomes primarily liable is not within statute of frauds. Scott Hudgens Realty & Mtg., Inc. v. Executive Action, Inc., 125 Ga. App. 81, 186 S.E.2d 504 (1971).
Promises required by paragraph (2) of the statute of frauds do not include original undertaking whereby the new promisor, for valuable consideration, substitutes oneself as party who is to perform, and releases original promisor. State Hwy. Dep't v. Eagle Constr. Co., 125 Ga. App. 678, 188 S.E.2d 810 (1972); Howard, Weil, Labouisse, Fredericks, Inc. v. Abercrombie, 140 Ga. App. 436, 231 S.E.2d 451 (1976).
There is no need for writing if new promisor, for valuable consideration, substitutes oneself as party who is to perform, and releases original promisor from liability. Ross v. W.P. Stephens Lumber Co., 138 Ga. App. 748, 227 S.E.2d 486 (1976).
Promise to answer for debt of another must be in writing unless the promise is original undertaking by one to become primarily liable. Chastain-Roberts Co. v. Better Brands, Inc., 141 Ga. App. 186, 233 S.E.2d 5 (1977).
Promise required by O.C.G.A. § 13-5-30 to be in writing does not include an original undertaking. Thus, when the promisor "guarantees" another's debt with additional qualifying words, such as promising to see that the creditor gets paid, and that the promisor is responsible for the bill, and credit is extended in reliance upon such words, the jury would be authorized to find that this was an original undertaking. Pope v. Triangle Chem. Co., 157 Ga. App. 386, 277 S.E.2d 758 (1981).
Oral representation that real estate broker "would see to it that [developers] would be paid on the first draw of any subsequent construction loan" might be used to hold the broker liable contractually as an original undertaking, though it would not sustain liability for negligent failure to insure the payment two years later. Community Fed. Sav. & Loan Ass'n v. Foster Developers, Inc., 179 Ga. App. 861, 348 S.E.2d 326 (1986).
If the agreement of the third party guarantor is an original undertaking, that is, one furthering one's own interests rather than underwriting the debt of another, it is not within the statute of frauds. Schwab U.S.A., Inc. v. Perpetual Mach. Co., 241 Ga. App. 13, 525 S.E.2d 719 (1999).
Statute inapplicable to promise to answer for another's debt based upon consideration moving to promisor.
- When promise to be answerable for debt of another is based upon consideration which moves to benefit promisor by inducing delay in institution of proceedings that might break up business of original debtor, in which business promisor is pecuniarily interested, obligation is in fact that person's own debt, notwithstanding its form, and consequently not within statute of frauds. Thomason v. Pease Co., 47 Ga. App. 776, 171 S.E. 467 (1933).
Substitution of debtor with one indebted to debtor, not within statute.
- Paragraph (2) of statute of frauds does not include original undertaking whereby new promisor, for valuable consideration between the new promisor and promisee, substitutes oneself as party to perform and releases original promisor. Evans v. Griffin, 1 Ga. App. 327, 57 S.E. 921 (1907); Foote v. Reece & Son, 17 Ga. App. 799, 88 S.E. 689 (1916); Williams v. Garrison, 21 Ga. App. 44, 93 S.E. 510 (1917).
When a creditor, the creditor's debtor, and a third person who owes debtor agree in parol that such third person shall be substituted for debtor and that latter shall be released, the case is not within statute of frauds, so as to require agreement to be in writing, but debt is extinguished as to debtor, and third person becomes by substitution debtor in the original debtor's place. Foote v. Reece & Son, 17 Ga. App. 799, 88 S.E. 689 (1916); Carr-Lee Grocery Co. v. Brannen, 46 Ga. App. 225, 167 S.E. 536 (1932).
Corporate officers not individually liable for corporate debt.
- Plain language of the document, although poorly drafted, established that the document was a promissory note made between two lenders and a corporation, and the officers signed the document in their representative capacity on behalf of the corporation. A provision that the officers personally guaranteed the debt could not be implied pursuant to O.C.G.A. § 10-7-3. Elwell v. Keefe, 312 Ga. App. 393, 718 S.E.2d 587 (2011).
In a suit on open account by a service provider against the provider's customer, a corporation, and the corporation's two shareholders, the shareholders were entitled to summary judgment because the shareholders had not promised to answer for the corporation's debt in writing as required by O.C.G.A. § 13-5-30. Heath v. Color Imprints USA, Inc., 329 Ga. App. 605, 765 S.E.2d 751 (2014).
Agreement to pay loan in consideration of releasing third person from contract not within paragraph (2) of statute of frauds. Evans v. Griffin, 1 Ga. App. 327, 57 S.E. 921 (1907).
Promise to indemnify another for becoming security to a third, is not within statute, and need not be in writing. Jones v. Shorter, 1 Ga. 294, 44 Am. Dec. 649 (1846).
Implied promise to indemnify maker of promissory note arose out of written assumption of loan for which note had been given, i.e., promise to answer for debt of another, and such promise of indemnification was not required to be in writing. Giordano v. Federal Land Bank, 163 Ga. App. 390, 294 S.E.2d 634 (1982).
Document signed by individual owners of a masonry business in support of the business's application for a performance bond on a construction project was a contract of indemnity and not a guaranty, and the document did not fall within the statute of frauds, O.C.G.A. § 13-5-30(2); summary judgment for the bond issuer should have been granted. Auto-Owners Ins. Co. v. CW Masonry, Inc., 350 Ga. App. 401, 829 S.E.2d 443 (2019).
Indemnification provision not within statute of frauds.
- Trial court properly awarded damages jointly and severally against an individual representing an electrical contractor because the individual was charged with knowledge of the signature provision, whether read or not, and no violation of the statute of frauds existed because the signature provision was an assumption of the obligations under the contract or indemnity provision, not a guaranty; thus, the individual was a principal under the contract, not a guarantor. Progressive Elec. Servs. v. Task Force Construction, Inc., 327 Ga. App. 608, 760 S.E.2d 621 (2014).
Subrogation agreement between debtor and one paying debtor's debt need not be written.
- Agreement between debtor and one paying debtor's debt that latter shall be subrogated to rights of original creditor need not be in writing. Lee v. Holman, 182 Ga. 559, 186 S.E. 189 (1936).
Bonds and other surety contracts are within contemplation of statute.
- See Continental Ins. Co. v. Gazaway, 216 Ga. App. 125, 453 S.E.2d 91 (1994).
Partner's signatures on a contract assigning a franchise to the partnership that did not unequivocally state that the partners personally guaranteed the partnership's debt, did not bind the partners individually, and was unenforceable against the partners pursuant to the statute of frauds, O.C.G.A. § 13-5-30(2). Groth v. Ace Cash Express, Inc., 276 Ga. App. 350, 623 S.E.2d 208 (2005).
Promise by assignee of bonds for title to pay purchase money not within paragraph (2) of statute of frauds.
- One taking bond for titles by assignment under contract to pay purchase money due to original vendor may be compelled by court of equity to perform one's contract. It is not a parol promise to answer for debt of another under the statute of frauds. Ford v. Finney, 35 Ga. 258 (1866).
Grantee's promise to assume payment of loan deed on property purchased not within statute of frauds.
- Promise of grantee to assume payment of indebtedness represented by loan deed on property grantee purchased was a part of the consideration grantee agreed to pay for the property. It is true that in doing so grantee incidentally discharged a debt of the grantor, but this does not bring the grantee's promise within operation of statute of frauds. Brice v. National Bondholders Corp., 187 Ga. 511, 1 S.E.2d 426 (1939).
Agent's promise to collect or guarantee collection of loan not within paragraph (2) of statute of frauds.
- Neither agent's promise to collect loan nor agreement, as part of contract of agency, to guarantee the loan, constitutes promise to answer for debt, default, or miscarriage of another, and statute of frauds is not applicable. Benton v. Roberts, 35 Ga. App. 749, 134 S.E. 846 (1926), later appeal, 168 Ga. 769, 149 S.E. 35 (1929).
Fully performed oral agreement to transfer property.
- Genuine issue of material fact existed as to whether a claimant alleging that the claimant owned real property pursuant to an oral contract that the claimant had fully performed, along with paying property taxes, qualified to seek redemption of the property from a tax sale. Tyner v. Edge, 355 Ga. App. 196, 843 S.E.2d 632 (2020).
Agreement to take land subject to specified encumbrance is not agreement to assume and pay encumbrance; there must be words importing promise to pay debt to render grantee personally liable. Alsobrook v. Taylor, 181 Ga. 10, 181 S.E. 182 (1935).
Contract creating policy of fidelity insurance not considered promise to answer for another's debt.
- Contract creating policy of fidelity insurance is not to be classed as an undertaking of guaranty or suretyship, and it thus is not a promise to answer for the debt, default, or miscarriage of another within meaning of statute of frauds. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136, answer conformed to, 47 Ga. App. 665, 171 S.E. 143 (1933).
Defense counsel's alleged oral promise to vouch for the appearance of counsel's client was in the nature of a suretyship, not an original, independent undertaking, and in the absence of a writing was unenforceable. Cramer v. State, 191 Ga. App. 493, 382 S.E.2d 200 (1989).
Amount and time of payments established by subsequent invoices.
- When a written guaranty agreement promising to pay for "any and all materials billed" to a third party did not state a specific amount to be paid or the time the debt was to become due, such matter could be established by invoices for materials purchased subsequent to the making of the agreement. Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 324 S.E.2d 746 (1984).
Proving identity of principal debtor.
- In action to recover on contract of guaranty, parol evidence was not admissible to prove identity of principal debtor, the identity not having been provided by subject written agreement. Builder's Supply Corp. v. Taylor, 164 Ga. App. 127, 296 S.E.2d 417 (1982); Roden Elec. Supply, Inc. v. Faulkner, 240 Ga. App. 556, 524 S.E.2d 247 (1999).
If the creditor's name is the only identity omitted from the letter of guaranty, the creditor may use evidence submitted by the debtor to prove the creditor's identity, and the debtor will not be allowed to assert a statute of frauds defense to the contract. Murray v. Pratt-Dudley Bldrs. Supply Co., 176 Ga. App. 225, 335 S.E.2d 443 (1985).
Guaranty agreement that was included at the bottom of the same page as a credit application identified the principal debtor by referring to "the above applicant;" when read in conjunction with the incorporated application, with the word "applicant" bearing its usual meaning, the guaranty agreement identified the principal debtor sufficiently to satisfy the Statute of Frauds. House Hasson Hardware Co., Inc. v. Lawson's Home Ctr., Inc., 332 Ga. App. 295, 772 S.E.2d 389 (2015).
No requirement to specifically denominate principal debtor.
- There is no requirement that a guaranty specifically denominate a party as the "principal debtor" on a credit application. Therefore, since the contract identified the principal debtor as the "customer," parol evidence would be admissible to help explain any ambiguity as to whom that term refers. Capital Color Printing, Inc. v. Ahern, 291 Ga. App. 101, 661 S.E.2d 578 (2008).
Evidence of promise required.
- Paragraph (2) of O.C.G.A. § 13-5-30 inapplicable in case where, even if a loan was made by plaintiff to defendant's father and not to defendant, there was no evidence that defendant promised to assume the debt of defendant's father. Mills v. Barton, 205 Ga. App. 413, 422 S.E.2d 269 (1992).
The controlling document, a credit application, was invalid since it did not identify the principal debtor; the trial court could not determine the identity of the debtor without making inferences or considering impermissible parol evidence. Fontaine v. Gordon Contrs. Bldg. Supply, Inc., 255 Ga. App. 839, 567 S.E.2d 324 (2002).
Guaranty contract sufficiently met the requirements of O.C.G.A. § 13-5-30(2) that it identify the debt, the promisee, and the promisor because the guaranty contract was attached to the promissory note which it guaranteed, referred to that promissory note, and the guaranty contract's obligations could be completely identified by this reference. Cox v. U.S. Mkts., 278 Ga. App. 287, 628 S.E.2d 701 (2006).
Appellate court erred by concluding that a guaranty was unenforceable for not sufficiently identifying the name of the principal debtor and thus failing to satisfy the Statute of Frauds, O.C.G.A. § 13-5-30(2), because the word applicant, bearing its usual and common meaning, identified the company applying for credit and, therefore, clearly identified the company as the principal debtor. Lafarge Bldg. Materials, Inc. v. Thompson, 295 Ga. 637, 763 S.E.2d 444 (2014).
Agreements Made in Consideration of Marriage
Prenuptial parol agreement to make and execute in writing a settlement after marriage is within statute of frauds. Bradley v. Saddler, 54 Ga. 681 (1875).
Promise to marry is not agreement within paragraph (3) of statute of frauds. Spence v. Carter, 33 Ga. App. 279, 125 S.E. 883 (1924).
Exception to paragraph (3) contained in Article 3 of Chapter 3 of Title 19 see Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961).
Contracts Transferring Interests in Land
1. In General
Discussion of history of paragraph (4) of section of statute of frauds see Roughton v. Rawlings, 88 Ga. 819, 16 S.E. 89 (1892); Woo v. Markwalter, 210 Ga. 156, 78 S.E.2d 473 (1953).
All contracts as to sale of lands or any interest therein must be reduced in writing. Alsobrook v. Taylor, 181 Ga. 10, 181 S.E. 182 (1935).
Contracts "concerning" land.
- An alleged oral agreement under which the plaintiff was to furnish certain services and the defendant was required to pay plaintiff ten percent of the value of development property was not subject to the statute of frauds, notwithstanding that it concerned land, because it did not involve the sale of, or conveyance of an interest in, land. Weatherby v. Barsk, 248 Ga. App. 848, 545 S.E.2d 701 (2001).
An option to purchase land falls within that portion of the statute of frauds pertaining to "any contract for the sale of lands, or any interest in, or concerning lands." Pacific Grove Holding, L.L.C. v. Hardy, 243 Ga. App. 161, 532 S.E.2d 710 (2000).
Because a real estate option contract in favor of a buyer lacked the amount or number of installments, the allocation of interest on the payments, or the duration of the loan, the contract violated the statute of frauds, O.C.G.A. § 13-5-30; thus, the trial court properly granted summary judgment to the sellers. A. S. Reeves & Co., Inc. v. McMickle, 270 Ga. App. 132, 605 S.E.2d 857 (2004).
Authority to execute option contract.
- Because the statute of frauds requires that an option contract for the purchase of land be in writing, the authority of an agent to execute such a contract likewise must be in writing. Garrett v. S. Health Corp. of Ellijay, Inc., 320 Ga. App. 176, 739 S.E.2d 661 (2013).
Written authority must be shown to support agent's sale or lease of principal's lands. Union Camp Corp. v. Dyal, 460 F.2d 678 (5th Cir.), cert. denied, 409 U.S. 849, 93 S. Ct. 56, 34 L. Ed. 2d 90 (1972).
Application to nonjudicial foreclosure sales.
- Statute of frauds applied to a sale conducted pursuant to a power of sale contained in a security deed. James v. Safari Enters., Inc., 244 Ga. App. 813, 537 S.E.2d 103 (2000).
Oral authority may suffice when principal ratifies act or is otherwise estopped from raising issue. Union Camp Corp. v. Dyal, 460 F.2d 678 (5th Cir.), cert. denied, 409 U.S. 849, 93 S. Ct. 56, 34 L. Ed. 2d 90 (1972).
Parol purchase of lands is obnoxious to statute of frauds. Blance v. Goodnow, 68 Ga. 264 (1881).
Distinction between easements and license.
- There is distinction between privilege or easement, carrying interest in land, and requiring writing within statute of frauds to support it, and license which gives authority to do particular act or series of acts upon land of another for purpose of improvement only, without possessing any estate therein, which is not within statute. Jenkins v. Brown, 48 Ga. App. 480, 173 S.E. 257 (1934).
In a suit brought by a property owner seeking to specifically perform an oral agreement to purchase a strip of real estate, the trial court properly denied the property owner's request for an interlocutory judgment based on a violation of the statute of frauds and because another held a first right of refusal over the sale/purchase of the property. However, the trial court erred by concluding that the property owner had not obtained a parol license to use the strip since the property owner had made expenditures to improve the land and, as to the right of first refusal held by another, the grant of a parol license was not the equivalent to a sale of the property to have in anyway interfered with that right. Meinhardt v. Christianson, 289 Ga. App. 238, 656 S.E.2d 568 (2008).
Statute of frauds no defense when party acts on promise to party's detriment.
- Defense that promise to purchase property and assume mortgage is not actionable under the statute of frauds as not having been in writing is without merit when other party acted on promise to the party's detriment. Scott v. Lumpkin, 153 Ga. App. 17, 264 S.E.2d 514 (1980).
Petition for breach of contract within statute need not allege contract was written.
- Petition in action for breach of contract for sale of land is not demurrable because it fails to allege that such contract was in writing as required by the statute of frauds. Taliaferro v. Smiley, 112 Ga. 62, 37 S.E. 106 (1900).
Testimony relating to oral agreement to purchase land, inadmissible unless within exception to statute. Walters v. Missouri State Life Ins. Co., 53 Ga. App. 347, 185 S.E. 572 (1936).
Parol real estate trusts may be established in direct contradiction of statute on ground of fraud; and whenever a case of fraud is made by the bill, parol evidence will be received for purpose of sustaining that case, even though effect of such evidence is to alter or vary written instrument, and although benefit of statute be insisted upon by defendant. Smith v. Harvey-Given Co., 182 Ga. 410, 185 S.E. 793 (1936), later appeal, 183 Ga. 783, 190 S.E. 19 (1937).
Statute not violated by showing that consideration of deed is performance of parol agreement. Duggan v. Dennard, 171 Ga. 622, 156 S.E. 315 (1930).
Oral testimony as to promisor's admission of land contract does not obviate statute.
- Provisions of the statute of frauds requiring land contracts to be in writing cannot be nullified by oral testimony that the promisor had made statements admitting the contract which is sought to be enforced. Powell v. Adderholdt, 230 Ga. 211, 196 S.E.2d 420 (1973).
Distinction between actions in equity and at law to remove conveyance from paragraph (4) of statute of frauds.
- Rule that contract with respect to interest in land is not taken out of statute of frauds for reason that party alleging contract was not in possession of property applies to cases in equity for specific performance or damages in lieu thereof, and not to actions at law for damages for breach of contract. Moore v. Deal, 75 Ga. App. 823, 44 S.E.2d 571 (1947).
It is proper to charge that an interest in real estate must be evidenced in writing.- See Columbus Bank & Trust Co. v. Cohn, 644 F.2d 1040 (5th Cir. 1981).
In an action by surviving siblings against an heir at law, claiming that the siblings were the rightful owners of certain realty because the decedent had promised to devise the property to the siblings, the trial court did not err by instructing the jury on the statute of frauds because O.C.G.A. § 13-5-30(4) required contracts affecting title to land to be in writing and the title of realty was the subject of the siblings' complaint. Swann v. Shorter, 262 Ga. App. 808, 586 S.E.2d 711 (2003).
Real estate partnerships.
- Partnership formed for the purpose of acquiring interest in tracts of land must be executed in writing. Shivers v. Sexton, 164 Ga. App. 490, 296 S.E.2d 749 (1982).
Evidence of oral agreement to pay a sum representing equitable holding in property was not inadmissible under O.C.G.A. § 13-5-30 as it was specifically exempted by O.C.G.A. § 13-5-31(2) as an agreement upon which conveyance of the property had been based. Kolb v. Holmes, 207 Ga. App. 184, 427 S.E.2d 562 (1993).
Handwritten lease agreement.
- Trial court erred in finding that a handwritten agreement between the parties constituted an enforceable lease in the landlord's dispossessory action as the only terms listed in the document were a payment schedule and brief damages and indemnification provisions, but there was no indication of when the lease term began or which property was covered; the statute of frauds, O.C.G.A. § 13-5-30(5), was violated, and because the affirmative defense of estoppel under O.C.G.A. § 9-11-8(c) was not raised by the parties, it was error for the trial court to have raised the defense sua sponte. Nacoochee Corp. v. Suwanee Inv. Partners, LLC, 275 Ga. App. 444, 620 S.E.2d 641 (2005).
2. Indefinite or Unascertained Boundaries
Indefinite or unascertained boundary may be established by parol agreement.
- When boundary line between two estates is indefinite or unascertained, owners may by parol agreement establish division line which will afterwards control their deeds, notwithstanding statute of frauds. Brown v. Hester, 169 Ga. 410, 150 S.E. 556 (1929); Williamson v. Prather, 188 Ga. 545, 4 S.E.2d 140 (1939).
Parol agreement between adjoining landowners to fix a boundary line between their respective tracts theretofore unascertained, uncertain, or disputed is not within operation of the statute of frauds for reason that no estate is created. Tietjen v. Dobson, 170 Ga. 123, 152 S.E. 222 (1930).
When dividing line between coterminous owners is indefinite, unascertained, or disputed, owners may by parol agreement, duly executed, establish line which will control their deeds, notwithstanding statute of frauds. Holland v. Shackelford, 220 Ga. 104, 137 S.E.2d 298 (1964).
Descriptive keys in contract of sale.
- Trial court properly granted a seller's motion for partial summary judgment, and denied the escrow agent's motion to dismiss, in a suit filed by the seller to recover the earnest money deposit as the property description contained in the sales contract satisfied the Georgia statute of frauds, O.C.G.A. § 13-5-30, in that the sales contract made plain that the buyers agreed to purchase a shopping center, by name, located at a particular intersection, and that the property was encumbered by a recorded promissory note payable by the seller, secured by a recorded deed; in light of the descriptive keys within the sales contract, the trial court could properly consider extrinsic evidence. Nhan v. Wellington Square, LLC, 263 Ga. App. 717, 589 S.E.2d 285 (2003).
Trial court properly granted a real estate seller's motion to dismiss an action by a purchaser, alleging breach of contract and specific performance, as the real estate purchase agreement did not provide an adequate description of the property, and exhibits attached to the pleading did not enhance the description but instead, offered contradictions therein. Hendon Props. v. Cinema Dev., LLC, 275 Ga. App. 434, 620 S.E.2d 644 (2005).
Because a consent order that involved rights to real property did not incorporate or reference a document that contained a property description, nor did the order provide a key for such description of real property that was part of the parties' consent order, the order did not satisfy the requirements of the statute of frauds, pursuant to O.C.G.A. § 13-5-30(4), and a contempt finding based on such order was not supported. Carden v. Carden, 276 Ga. App. 43, 622 S.E.2d 389 (2005).
A property description in a backup contract was too vague to satisfy the statute of frauds; the backup contract did not refer specifically to the primary contract or incorporate the property description in that contract by reference, and there was no "key" that opened the door to extrinsic evidence leading unerringly to the land in question. Daniel Mill, LLC v. Lyons, 283 Ga. App. 604, 642 S.E.2d 226 (2007).
Land description insufficient.
- "Any additional properties" easement provision in agreement by landowner to convey land and easement rights to city did not satisfy the statute of frauds, as the provision failed to specify any property location; thus, the master plan could not serve as a key to point unerringly to property at issue. Gold Creek SL, LLC v. City of Dawsonville, 290 Ga. App. 807, 660 S.E.2d 858 (2008).
Purchase agreement for the sale of a convenience store was unenforceable because the property description clearly failed to identify the land at issue with the requisite certainty because the agreement merely provided a street address. Although the address could be a key through which the boundaries could have been established by extrinsic evidence, no such evidence was produced. Salim v. Solaiman, 302 Ga. App. 607, 691 S.E.2d 389 (2010).
Use of word "extension" did not render a description legally adequate as it did not indicate the location of the property and did not provide a means of identifying all of the boundaries of the disputed property. Even in the absence of a specific course for the extended property lines, the agreement's use of the phrase "westward to Early Street" further muddied the water, as that language failed to specify where along Early Street the property line would terminate. Rohrig Invs., LP v. Knuckle P'ship, LLLP (In re Rohrig Invs., LP), 584 Bankr. 382 (Bankr. N.D. Ga. 2018).
Land description was sufficient.
- Trial court erred in finding that a real estate sales contract did not contain a sufficient description of the land to be sold where the contract described the land as being in two land lots of a specific district and section, designated the map and parcel number as shown by the tax assessor's office, referred to the plat book and page number, which in turn described the property in detail and referred to a survey plat, and specified that the buyer was to acquire the rear one acre of the property as shown per a survey conducted before closing; because only one side of the property fronted a road, language indicating that the "rear" half of the property was sufficient to indicate that portion of the land the transferor intended to convey. Kay v. W.B. Anderson Feed & Poultry Co., 278 Ga. App. 674, 629 S.E.2d 408 (2006).
Agreement by landowner to convey land and easement rights to city sufficiently described certain land so as to satisfy the statute of frauds; agreement provided a key that indicated the intention by the landowner to convey a particular tract of land and certain easements, the precise boundaries and location of which could be determined by extrinsic evidence. Gold Creek SL, LLC v. City of Dawsonville, 290 Ga. App. 807, 660 S.E.2d 858 (2008).
Parties to such agreement must know or reasonably believe boundary is disputed or unascertained.- Coterminous proprietors must know or reasonably believe boundary is disputed or unascertained before the proprietors can orally agree to or acquiesce in new line. Otherwise, their agreement, whether express or implied, runs afoul of paragraph (4) of the statute of frauds. United States v. Williams, 441 F.2d 637 (5th Cir. 1971).
Such agreement valid and binding if accompanied by possession or otherwise duly executed.
- Parol agreement between coterminous proprietors, that certain line is true dividing line, is valid and binding as between the proprietors, if agreement is accompanied by possession of agreed line or is otherwise duly executed, and if boundary line between two tracts is indefinite, unascertained, or disputed. Callaway v. Armour, 207 Ga. 229, 60 S.E.2d 367 (1950).
Such agreement creates no estate, since owners hold to line under title deeds rather than parol transfer.
- Parol agreement between adjoining landowners to fix boundary line between their respective tracts theretofore unascertained, uncertain, or disputed is not within operation of statute of frauds for reason that no estate is created. When boundary line is established by consent, coterminous proprietors hold up to it by virtue of their title deeds, and not by virtue of parol transfer. Callaway v. Armour, 207 Ga. 229, 60 S.E.2d 367 (1950).
Such agreement operates merely as agreement regarding what has already been conveyed.
- It is necessary in order to establish a dividing line between coterminous landowners by parol agreement alone that line is unascertained, uncertain, or disputed and only basis for ruling that such agreement is not within statute of frauds is that in instances where it is applicable it does not operate as a conveyance of land, but merely as agreement with respect to what has already been conveyed. Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945).
Exercise of option to purchase prohibited.
- When a party who leased certain land from the land's supposed owner, who could not read, attempted to enforce an option to purchase the land, which was included in documents the lessee gave the owner to sign, the option was unenforceable under O.C.G.A. § 13-5-30(4) because the documents did not adequately describe the land, and their reference to a tax appraisal was insufficient because the deed and survey referred to by the appraisal described a parcel of a different size and location. Makowski v. Waldrop, 262 Ga. App. 130, 584 S.E.2d 714 (2003).
3. Writing
Every essential element of contract for sale of land must be expressed in writing. Smith v. Wilkinson, 208 Ga. 489, 67 S.E.2d 698 (1951).
Lender and attorney were properly granted summary judgment against a home buyer's breach of contract, fraud, and conspiracy claims as: (1) there was no evidence of a written purchase agreement for the home and the land it was placed on; and (2) a simple reading of the contract by the buyer would have protected against any alleged misrepresentations; moreover, to the extent that the home buyer's claim of a conspiracy depended upon the viability of the fraud and breach of contract claims, it also failed. Parrish v. Jackson W. Jones, P.C., 278 Ga. App. 645, 629 S.E.2d 468 (2006).
Oral agreement unenforceable.
- In a case arising out of a dispute between a hotel management company and purchasers of a hotel, an alleged oral agreement that the hotel management company sought to enforce did not comply with the requirements of the statute of frauds, O.C.G.A. § 13-5-30(5). BMC-Benchmark Mgmt. Co. v. Ceebraid-Signal Corp., F.3d (11th Cir. Sept. 8, 2008)(Unpublished).
Writings insufficient to satisfy statute when parol evidence necessary to connect or explain writings.
- When several writings are relied on to establish sale of land or of timber growing thereon, or to show authorization by owner for another to sell the land, and parol evidence is necessary to connect and explain such writings, such writings will not satisfy the statute of frauds. Peacock v. Horne, 159 Ga. 707, 126 S.E. 813 (1925).
Terms of payment, as well as purchase price, must be set out in writing.
- When amount of purchase price fixed by contract for sale of real estate is certain and definite, but terms of payment are indefinite and uncertain, writing is not a contract and confers no rights and imposes no liability. Morgan v. Hemphill, 214 Ga. 555, 105 S.E.2d 580, answer conformed to, 98 Ga. App. 732, 106 S.E.2d 865 (1958).
When parties have agreed upon purchase price, the price must be set out in written agreement for sale of land and cannot be shown by parol. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).
Debtor's principal believed that the principal had a commitment in written form on the record, but, while the documents evidenced an active effort to place permanent loans for purchasers of condominium units, there was nothing which remotely met the standard for proving a loan commitment. Darby Bank & Trust Co. v. Captain's Watch, LLC (In re Captain's Watch, LLC), 447 Bankr. 903 (Bankr. S.D. Ga. 2010).
Amendment of lease-option agreement.
- Lessor's letter to the lessee containing an offer to amend a lease-option agreement by changing the purchase price satisfied the statute of frauds because the offer was in writing. Smith v. Davis, 245 Ga. App. 34, 536 S.E.2d 261 (2000).
Contract for purchase of lands need only be signed by party against whom enforcement sought. Fraser v. Jarrett, 153 Ga. 441, 112 S.E. 487 (1922).
Writing confirming oral amendment.
- Under paragraph (4) of O.C.G.A. § 13-5-30, buyer signed letter expressly confirming terms of oral amendment to defer payment of additional earnest money and under paragraph (2) of that section sellers fully performed contract in reliance on promise to pay earnest money; therefore, statute of frauds was satisfied. Ware v. Renfroe, 231 Ga. App. 529, 499 S.E.2d 907 (1998).
Contract for sale of land, partly in writing and partly in parol, is unenforceable by reason of statute of frauds. Thompson v. Colonial Trust Co., 35 Ga. App. 12, 131 S.E. 921 (1926); Stanaland v. Stephens, 78 Ga. App. 68, 50 S.E.2d 258 (1948).
Contract involving purchase and sale of lands, which has been partly reduced to writing and partly rests in parol, does not meet requirement of statute of frauds and is incapable of enforcement, unless circumstances of transaction bring the transaction within exceptions to general rule. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).
Because O.C.G.A. § 13-5-30 requires that every essential element of the sale must be expressed in the writing, a contract for the sale of land, which is partly in writing and partly in parol, is not enforceable. Smith v. Cox, 247 Ga. 563, 277 S.E.2d 512 (1981).
Under the statute of frauds, a contract transferring an interest in land is unenforceable if it is partly in writing and partly in parol. Stamps v. Ford Motor Co., 650 F. Supp. 390 (N.D. Ga. 1986).
Description of land conveyed is essential element of agreement.
- One essential element of agreement is that land be so described that the land is capable of identification. Tippins v. Phillips, 123 Ga. 415, 51 S.E. 410 (1905); Durham v. Davison, 156 Ga. 49, 118 S.E. 736 (1923).
In contracts for sale of land, description of land conveyed is one essential element of agreement and must be expressed in writing. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).
Reason for requiring property description.
- A principle point of requiring a sufficient description of property to render enforceable the sales contract is not merely to satisfy the buyers but to create marketable title. Schirmer v. Amoroso, 209 Ga. App. 682, 434 S.E.2d 80 (1993).
Sufficiency of description in contracts selling or transferring interests in land.
- While it is not necessary that land be described with such precision that the land's location and identity are apparent from description alone, description must be sufficiently clear to indicate with reasonable certainty the land intended to be conveyed. Tippins v. Phillips, 123 Ga. 415, 51 S.E. 410 (1905); Durham v. Davison, 156 Ga. 49, 118 S.E. 736 (1923).
Contract for sale of land to be valid, binding, and enforceable must describe land to be sold with same degree of certainty as that required of deed conveying realty. Smith v. Wilkinson, 208 Ga. 489, 67 S.E.2d 698 (1951).
Lease of standing timber must describe land upon which timber stands with sufficient certainty for identification or give key by which it may be identified. Newton v. Allen, 220 Ga. 681, 141 S.E.2d 417 (1965).
Description containing key by which land can be located with aid of extrinsic evidence suffices.
- If description in deed is ambiguous but sufficient to furnish key to boundary, extrinsic evidence may be used to correctly apply description to true boundary intended by parties. Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438 (1945).
Deed is sufficient to pass title, and will not be declared void for uncertainty of description, if descriptive averments are certain, or if they afford key by which land can be definitely located by aid of extrinsic evidence. Smith v. Wilkinson, 208 Ga. 489, 67 S.E.2d 698 (1951).
Parol evidence admissible to explain ambiguities in description.
- While parol evidence may be admitted to explain ambiguities in description, it cannot be admitted to supply description which is entirely wanting in writing. Douglass v. Bunn, 110 Ga. 159, 35 S.E. 339 (1900).
4. Application
Agreement to sell land upon tender of specified amount within given time.
- Agreement resting wholly in parol, whereby one promises to sell to another an interest in land upon tender within given time of specified amount, is within this provision clearly. Lyons v. Bass, 108 Ga. 573, 34 S.E. 721 (1899).
Delay of closing date in sale of real property.
- In a dispute over the sale of land, the trial court erred in granting judgment on the pleadings to the seller because factual questions remained as to whether the seller's conduct waived strict compliance with the closing date since the seller could not induce the buyer into delaying the closing and then complain that such delay breached the contract. BCM Construction Group, LLC v. Williams, 353 Ga. App. 811, 840 S.E.2d 51 (2020).
Mortgages, deeds to secure debt, and deeds of trust.- No mortgage, deed to secure debt, or deed of trust may be created in Georgia unless it be in writing and properly witnessed and executed by owner of interest in land. FDIC v. Willis, 497 F. Supp. 272 (S.D. Ga. 1980).
Oral modification to agreement not enforceable.
- Defendant was not required to give credit to the plaintiff for the full amount paid by a third party to purchase a portion of the land leased by the defendant to the plaintiffs pursuant to a lease/purchase agreement since the purported oral modification of the agreement, i.e., to reduce the purchase price by the amount paid by the third party, was never reduced to writing and never became a part of the lease/purchase agreement. Walden v. Smith, 249 Ga. App. 32, 546 S.E.2d 808 (2001).
Option for purchase of land falls within purview of paragraph (4) of the statute of frauds. Florence v. Rankin-Whitten Realty Co., 101 Ga. App. 333, 114 S.E.2d 70 (1960).
Oral agreement to modify mortgage terms.
- Borrower's claim of fraud based on alleged oral agreements by the lenders to modify the borrower's mortgages failed because any modification of the mortgages was required to be in writing pursuant to the statute of frauds, O.C.G.A. § 13-5-30(4) and (7). DeSouza v. Fed. Home Mortg. Corp., F.3d (11th Cir. July 16, 2014)(Unpublished).
Summary judgment was improperly denied to the lender on the borrowers' fraud claim because, even assuming that the lender promised the borrowers that their loan modifications would be approved, that promise could not serve as the basis of a claim for fraud as that promise was unenforceable at the time it was made since it was not in writing. Oconee Fed. S&L Ass'n v. Brown, 351 Ga. App. 561, 831 S.E.2d 222 (2019), cert. dismissed, No. S20C0074, 2020 Ga. LEXIS 201 (Ga. 2020).
Statute of frauds applies to option to purchase.
- Difference between option and contract for sale and purchase of land is not such as to remove option agreement from operation of statute of frauds. Neely v. Sheppard, 185 Ga. 771, 196 S.E. 452 (1938).
While option to purchase land may not pass any interest in land before exercise of option, statute of frauds applies to such transactions. Neely v. Sheppard, 185 Ga. 771, 196 S.E. 452 (1938).
Agreement to reconvey property.- When the warranty deed made no mention of any agreement to reconvey the subject property and appeared complete on the deed's face, making it unnecessary for the court to look to other evidence to clarify any ambiguities, the statute of frauds prevented the debtor from asserting that there existed at the time of the conveyance an oral agreement to reconvey the property. SMS Inv. Assocs. v. Peachtree City, 180 Bankr. 694 (Bankr. N.D. Ga. 1995).
Letter by developer's representative stating that upon payment of the money, the city would deed the area in question back to the developer was not a writing sufficient to meet the requirements of the statute of frauds since neither the city nor any person lawfully authorized by the city signed the letter. SMS Inv. Assocs. v. Peachtree City, 180 Bankr. 694 (Bankr. N.D. Ga. 1995).
Option to purchase rented premises is contract required by statute to be written. Robinson v. Odom, 35 Ga. App. 262, 133 S.E. 53 (1926).
Partition agreement falls within statute of frauds and must be in writing. Thurmond v. Thurmond, 179 Ga. 831, 177 S.E. 719 (1934).
Lease contracts conveying estates for years fall within statute of frauds. Newton v. Allen, 220 Ga. 681, 141 S.E.2d 417 (1965).
Lease of real estate for period of seven years falls within statute of frauds. Baxley Hdwe. Co. v. Morris, 165 Ga. 359, 140 S.E. 869 (1927), later appeal, 168 Ga. 769, 149 S.E. 35 (1929).
Option to renew lease.
- Purported lease renewal was void and inoperative when there was no writing as required by the statute of frauds to authorize the exercise of an option to renew the lease for another three-year term. Brookhill Mgt. Corp. v. Shah, 197 Ga. App. 305, 398 S.E.2d 290 (1990).
Guaranty contract incorporated in lease.
- Individual guarantors were personally liable on a lease because the guaranty was in writing, the lease identified all of the essential parties and obligations, and the guarantors signed the guaranty as required by O.C.G.A. § 13-5-30(2); although the guaranty was not dated or notarized, the guaranty recited that it was executed contemporaneously with the lease, and the lease was dated. Triple T-Bar, LLC v. DDR Southeast Springfield, LLC, 330 Ga. App. 847, 769 S.E.2d 586 (2015).
Purchase agreement for an apartment building, one of eight apartment buildings on a plat, which did not describe the building which was to be bought and was so vague that nothing would have prevented buyers from selling the same building twice, was insufficiently descriptive and too vague to satisfy the statute of frauds. Schirmer v. Amoroso, 209 Ga. App. 682, 434 S.E.2d 80 (1993).
Agreement between spouses as to testamentary disposition of separate estates in realty.
- Husband and wife, each of them owning separate estates in realty, may not enter into oral agreement whereby they relinquish their right to inherit from each other, upon consideration that heirs of each will take their respective estates and that neither of them will execute a will directing disposition of their estates. Such a contract is within statute of frauds and is executory and testamentary in character. Griffin v. Driver, 202 Ga. 111, 42 S.E.2d 368 (1947).
Contract to adopt child and leave one-half of estate to child comes clearly within statute. Savannah Bank & Trust Co. v. Wolff, 191 Ga. 111, 11 S.E.2d 766 (1940).
Promise to take care of decedent's family.
- Woman's naked promise to take care of decedent's wife and daughter, without actual performance, was insufficient to permit enforcement of decedent's oral promise to make a will devising land. Martin v. Silvey, 200 Ga. App. 127, 407 S.E.2d 97 (1991).
Contract of sale of growing trees concerns interest in realty, and under the statute of frauds must be in writing. Corbin v. Durden, 126 Ga. 429, 55 S.E. 30 (1906); Baucom v. Pioneer Land Co., 148 Ga. 633, 97 S.E. 671 (1918).
Until severed from realty, timber is part thereof and falls within provisions of statute of frauds. Langdale Co. v. Day, 115 Ga. App. 30, 153 S.E.2d 671 (1967).
Contract for sale of standing timber to remain standing for fixed period.
- Contract for sale of standing timber is one involving interest in land within meaning of paragraph (4) of the statute of frauds when such timber is to remain standing for fixed period of time. Seabolt v. Christian, 82 Ga. App. 167, 60 S.E.2d 540 (1950).
Contract for sale of standing timber to be cut without appreciable delay.
- Contract for sale of standing timber which is to be cut and sawed into lumber without appreciable delay after sale does not involve interest in land within meaning of paragraph (4) of the statute of frauds. Seabolt v. Christian, 82 Ga. App. 167, 60 S.E.2d 540 (1950).
Contract to resell land to original seller falls within paragraph (4) of the statute of frauds. Amerson v. Cox, 35 Ga. App. 83, 132 S.E. 105 (1926).
Sale of land by auctioneer is within statute of frauds. Peek v. Muse, 59 Ga. App. 533, 1 S.E.2d 613 (1939); Pierce v. Rush, 210 Ga. 718, 82 S.E.2d 649 (1954).
Oral agreement regarding one-third interest in boat ramp.
- Grant of summary judgment to the defendants was affirmed because an oral agreement conveying an interest in land was unenforceable under the statute of frauds as the plaintiff failed to present any evidence of part performance to remove the oral agreement from the statute of frauds as the plaintiff did not identify any purported improvements or tax payments made, and the appellate court was not going to cull the record to locate information or facts from over 500 pages of ledgers the plaintiff cited. Bodiford v. Waltz, 351 Ga. App. 532, 830 S.E.2d 738 (2019), cert. denied, No. S20C0025, 2020 Ga. LEXIS 196 (Ga. 2020).
Contract for sale of possession and improvements is within statute of frauds because possession is considered an interest in land; it is prima facie evidence of title, and sale of land with improvements thereon is within statute. McKee v. Cartledge, 79 Ga. App. 629, 54 S.E.2d 665 (1949).
Contract signed by one of two sellers.
- When the written contract contained no condition that the contract must be signed by both sellers nor was there any indication on the contract that the parties contemplated that the other seller would sign, and the contract was initialed throughout by one of the sellers and signed by one as seller, the contract complied with the requirements of O.C.G.A. § 13-5-30. Johnson v. Sackett, 256 Ga. 552, 353 S.E.2d 326 (1986).
Contract for improvement of realty not within statute of frauds. Phoenix Air Conditioning Co. v. Towne House Developers, Inc., 124 Ga. App. 782, 186 S.E.2d 429 (1971).
Promise or agreement to pay for improvements made on land is not within paragraph (4) of statute of frauds. Jenkins v. Brown, 48 Ga. App. 480, 173 S.E. 257 (1934).
Restrictive covenant to build fence.
- Statute of frauds did not preclude imposing liability on successor landowners for breach of a restrictive covenant in a contract to build a fence because, as buyers, they were charged with notice of the covenant in a recorded agreement, which required them to build a fence upon development of the property. Lesser v. Doughtie, 300 Ga. App. 805, 686 S.E.2d 416 (2009).
Listing contract with realty broker.
- Contract listing real property for sale with broker not subject to same rules as contract for purchase and sale of real property. It does not come within statute of frauds so as to require that the contract be in writing. Orr v. Smith, 102 Ga. App. 40, 115 S.E.2d 601 (1960).
Contract between broker and owner of real estate.
- Oral contract between broker and owner of real estate sold, upon which suit for commissions is based, is not within paragraph (4) of the statute of frauds. Lingo v. Blair, 32 Ga. App. 111, 122 S.E. 802 (1924).
Brokerage contract for sale of lands, containing no power on part of broker to execute conveyance of lands, is contract for services and does not come within statute of frauds as constituting contract for sale of lands. Cantrell v. Johnston, 74 Ga. App. 74, 38 S.E.2d 893 (1946).
Agreement whereby real estate broker shall secure sale upon specified terms.
- Agreement, express or implied, for real estate broker to induce owner of realty to sell upon specified terms does not come within provisions of statute of frauds. Pierce v. Deich, 81 Ga. App. 717, 59 S.E.2d 755 (1950).
Oral contract for rent, accompanied by change in possession and payment of rent, not within statute of frauds. Richards v. Plaza Hotel, Inc., 171 Ga. 827, 156 S.E. 809 (1931).
Purported oral agreement regarding termination of lease.
- Purported oral agreement whereby a commercial lease was to be terminated by the lessee's act of simply vacating the premises was not enforceable under the statute of frauds. Johnson v. Ashkouti, 193 Ga. App. 810, 389 S.E.2d 27 (1989); Digby's, Inc. v. Emory Univ., 227 Ga. App. 176, 489 S.E.2d 81 (1997).
Joint venture agreements.
- Although partnership or joint venture agreements need not be in writing as a general matter, the fact that promises covered by the statute of frauds are made in the context of a partnership or joint venture agreement does not render O.C.G.A. § 13-5-30 inapplicable. East Piedmont 120 Assocs. v. Sheppard, 209 Ga. App. 664, 434 S.E.2d 101 (1993).
Evidentiary and cautionary purpose of O.C.G.A. § 13-5-30 are implicated when a promise to convey an interest in land is made in the context of a partnership or joint venture agreement just as those purposes are when such a promise is made in any other context. East Piedmont 120 Assocs. v. Sheppard, 209 Ga. App. 664, 434 S.E.2d 101 (1993).
Agreement to enter joint adventure to deal in lands.
- Agreement to enter joint adventure for purpose of dealing in lands into which one is to put property and another one's service, and which does not contemplate transfer of title is not within statute, notwithstanding it may be intended that as incident of enterprise one party may take title to lands for benefit of both. Manget v. Carlton, 34 Ga. App. 556, 130 S.E. 604 (1925).
Agreement to take proceeds from sale of realty in satisfaction of debt.
- When an agreement was not a contract for or concerning the sale of real property but was an oral agreement that plaintiff would accept the proceeds of such a sale as full satisfaction of a certain indebtedness, such agreement was not within the statute of frauds. Slappey Bldrs., Inc. v. FDIC, 157 Ga. App. 343, 277 S.E.2d 328 (1981).
Widow's election to take real estate.
- A widow's election to take a child's share of her husband's real estate in lieu of dower does not have to be written. Her election is not a contract, and the statute of frauds does not apply. Chapman v. McClelland, 248 Ga. 725, 286 S.E.2d 290 (1982).
Alleged oral subordination agreements between two mortgagees were not within statute of frauds. North Ga. Sav. & Loan Ass'n v. Corbeil, 177 Ga. App. 523, 339 S.E.2d 779 (1986).
Relevant date for reinstating mortgage under bankruptcy law after foreclosure sale.- When debtor argued that because a foreclosure sale of real property was subject to the statute of frauds in subsection (4), the debtor's ability to cure and reinstate a mortgage under bankruptcy law, 11 U.S.C. § 1322(b)(5), did not terminate until the foreclosure sale was completed by delivery of a deed under power of sale, it was held that the relevant date is the date on which the foreclosure sale occurs rather than the date on which the deed of sale under state law is delivered. Pearson v. Fleet Fin. Ctr., Inc., 75 Bankr. 254 (Bankr. N.D. Ga. 1985).
Failure to agree on specifics of payment.
- So-called agreement for the sale of a building did not provide for every essential element of the contract, for no agreement was reached on the specifics of payment of that portion of the sale price not paid at closing. Zappa v. Basden, 188 Ga. App. 472, 373 S.E.2d 246 (1988).
No breach of promise to pay additional sums for property.
- Property seller's claim that the buyers breached their promise to pay additional sums for the property after a closing, a promise allegedly contained within a promissory note failed under the statute of frauds, O.C.G.A. § 13-5-30(4) as the note did not refer to the property or the real estate transaction. Han v. Han, 295 Ga. App. 1, 670 S.E.2d 842 (2008).
Alleged oral agreement did not operate as a parol variance or modification of a written sales contract since there was a merger clause and the seller elected not to rescind the contract. Mitchell v. Head, 195 Ga. App. 427, 394 S.E.2d 114 (1990).
Reliance on oral agreement not established.
- Written contract for construction and sale of house barred builder's claim for breach of alleged oral contract where the builder failed to establish detrimental reliance on the oral agreement, the contract contained a merger clause stating that any subsequent agreement had to be in writing, signed by all the parties, and a second written contract, also containing a merger clause, was executed by the parties. Chip Kassinger, Inc. v. Steimer, 205 Ga. App. 349, 422 S.E.2d 241 (1992).
Oral agreement to purchase a homeowner's association lien.
- Oral agreement to buy a homeowner's association's lien and indebtedness against real property was required to be in writing and signed by the party to be charged pursuant to O.C.G.A. § 13-5-30(4); because the buyer did not acquire an interest in the property until after the date of redemption, contrary to O.C.G.A. §§ 48-4-40 and48-4-41, the redemption was void. DRST Holdings, Ltd. v. Brown, 290 Ga. 317, 720 S.E.2d 626 (2012).
Substantial performance and expenditures removed application of statute of frauds to land development.
- In a suit brought by a golf course development company against two other members of a limited liability company and a housing authority, the trial court erred by dismissing the golf course development company's oral breach of contract claim for the development of a golf course for a public housing project as, although a writing was required since the alleged contract involved real estate, the golf course development company sufficiently pled substantial performance, expenditures, and reliance to avoid application of the statute of frauds to the claim. Perry Golf Course Dev., LLC v. Hous. Auth., 294 Ga. App. 387, 670 S.E.2d 171 (2008).
Agreements Not to Be Performed Within One Year
Contract to begin in future and continue for one year from commencement must be written unless facts and circumstances are such as to make it an exception. Norman v. Nash, 102 Ga. App. 508, 116 S.E.2d 624 (1960).
Contract of employment for period of one year, to begin at future date, is subject to statute of frauds and required to be in writing. White v. Simplex Radio Co., 188 Ga. 412, 3 S.E.2d 890 (1939).
Offer of employment to commence on January 22, 1979, and to run for one year made on January 14, 1979, and accepted on January 15, was a contract that was not to be performed within one year from making and fell within statute of frauds. Slater v. Jackson, 163 Ga. App. 342, 294 S.E.2d 557 (1982); Ikemiya v. Shibamota Am., Inc., 213 Ga. App. 271, 444 S.E.2d 351 (1994).
Insofar as a parol agreement for employment was one to begin at a future date and not in the present, and to continue thereafter for one year, it was not to be performed within one year and thus ran afoul of the statute of frauds. Gatins v. NCR Corp., 180 Ga. App. 595, 349 S.E.2d 818 (1986).
Oral agreement for employment benefits.- Trial court erred in granting the employer summary judgment based on the statute of frauds as the employment agreement was capable of being performed within one year because the agreement was terminable at any time by either party and the employee arguably earned severance pay in a sum certain for services already performed at the commencement of the agreement's second year. Zulke v. AC&DC Power Technologies, LLC, Ga. App. , S.E.2d (July 22, 2020).
Verbal contract for services, to begin in future and continue for a year, is void under statute of frauds. Hudgins v. State, 126 Ga. 639, 55 S.E. 492 (1906); Bentley v. Smith, 3 Ga. App. 242, 59 S.E. 720 (1907); Lewis v. Southern Realty Inv. Corp., 42 Ga. App. 171, 155 S.E. 369 (1930); Katz v. Custom Spray Prods., Inc., 168 Ga. App. 451, 309 S.E.2d 663 (1983).
Oral contract of employment unenforceable.
- Oral contract of employment to commence at specified date in future and to continue for one year from that date is unenforceable under statute of frauds unless taken out of statute as provided by law. Morris v. Virginia-Carolina Chem. Corp., 48 Ga. App. 702, 173 S.E. 486 (1934).
As a general rule, oral contract of employment at specified monthly salary, to commence at future date and continue for period of a year, is void under statute of frauds, unless taken out of statute as provided by law. Alexander-Seewald Co. v. Marett, 53 Ga. App. 314, 185 S.E. 589 (1936), disapproved sub nom. Hudson v. Venture Indus., Inc., 243 Ga. 116, 252 S.E.2d 606 (1979).
Oral severance agreement barred by statute of frauds.
- Trial court did not clearly err in holding that enforcement of an oral severance agreement was barred by the statute of frauds, O.C.G.A. § 13-5-30(5), because a hospital's counsel clearly and unambiguously asked a doctor if the draft employment agreement, which provided that the severance would be payable for 15 months from the effective date of termination, contained a written description of the severance terms that the doctor had agreed upon, and the doctor answered in the affirmative; the trial court determined that the doctor's deposition responses constituted a clear and unambiguous admission of the 15-month payment term, and the court's ruling as to the reasonableness of the doctor's explanation was not clearly erroneous. Bithoney v. Fulton-Dekalb Hosp. Auth., 313 Ga. App. 335, 721 S.E.2d 577 (2011).
Oral severance agreement not barred by the statute of frauds.
- Summary judgment for an employer on the employee's claim for severance pay on the grounds that the terms were too vague to be enforceable was error; the employee's testimony that the employee would receive the employee's current compensation rate for 12 months from termination sufficiently established the terms. Because the agreement could have been performed in one year if the employee were immediately terminated, the agreement was not required to be in writing under O.C.G.A. § 13-5-30(5). Vernon v. Assurance Forensic Accounting, LLC, 333 Ga. App. 377, 774 S.E.2d 197 (2015), cert. denied, No. S15C1837, 2015 Ga. LEXIS 864 (Ga. 2015).
Supply contract proposed in a real estate sales contract, whereby the buyer would purchase gasoline from the seller for 10 years was not enforceable because it was not signed by either party or by anyone acting on behalf of either party. Smith Serv. Oil Co. v. Parker, 250 Ga. App. 270, 549 S.E.2d 485 (2001).
Contract establishing one-year landlord/tenant relationship, although made before year begins, may be in parol. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).
Parol contract creating relation of landlord and tenant for period of a year is valid although contract does not begin to operate in praesenti. Roland v. Floyd, 53 Ga. App. 282, 185 S.E. 580 (1936).
Possibility of performance within one year dispenses with necessity that contract be in writing to be enforced under paragraph (5) of the statute of frauds. Klag v. Home Ins. Co., 116 Ga. App. 678, 158 S.E.2d 444 (1967).
Contract for a writing which might be executed in a year is not within the statute of frauds. Henderson v. Touchstone, 22 Ga. 1 (1857).
Paragraph (5) of O.C.G.A. § 13-5-30 is inapplicable when defendant was to repay the loan when defendant was able and there was no evidence that the loan could not have been paid back within one year. Mills v. Barton, 205 Ga. App. 413, 422 S.E.2d 269 (1992).
An employment agreement between corporations and a former president which did not state the duration of the agreement did not fall within the statute of frauds. O.C.G.A. § 13-5-30(5) provides that any agreement that is not to be performed within one year from the making thereof has to be in writing and signed by the party to be charged in order to be binding on the promisor, and a contract of employment of indefinite duration does not fall within the statute of frauds because at the contract's inception, a contract of employment for an indefinite duration was an agreement capable of being performed within one year, and the possibility of performance of the contract within one year was sufficient to remove the contract from the statute of frauds. Parker v. Crider Poultry Inc., 275 Ga. 361, 565 S.E.2d 797 (2002).
Performance contingent upon death of party.
- Because an agreement could have been fully performed if a party died within the one year period, such possibility was sufficient to remove the agreement from operation of the statute. Bibb Distrib. Co. v. Stewart, 238 Ga. App. 650, 519 S.E.2d 455 (1999).
Statute inapplicable to agreement for indefinite period, terminable at will of either party.
- Parol agreement to begin in praesenti for indefinite period, terminable at will, is not inhibited by statute of frauds, and when employee suing on contract for amount of compensation due the employee, based upon services actually performed by the employee up to time of the employee's discharge, and not for damages or for compensation for services not performed or for any breach of contract, it is not necessary that the employee sue in quantum meruit for services actually performed. Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471, 180 S.E. 853 (1935).
Tenancy at will created.
- When an oral lease was for a definite term and the duration of the lease was to exceed one year, the agreement created a tenancy at will by operation of law. Travel Centre, Ltd. v. Starr-Mathews Agency, Inc., 179 Ga. App. 406, 346 S.E.2d 840 (1986).
Statute is inapplicable to agreement for indefinite period terminable at will or when there is a possibility of performance in one year. Vitner v. Funk, 182 Ga. App. 39, 354 S.E.2d 666 (1987); Blum v. Air Ctr. Gwinnett, Inc., 201 Ga. App. 313, 411 S.E.2d 88 (1991).
An oral employment contract terminable at will to begin in praesenti is not prohibited by the statute of frauds. Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 315 S.E.2d 51 (1984).
Permanent employment, employment for life, or employment until retirement involve indefinite duration.
- In absence of controlling contract, permanent employment, employment for life, or employment until retirement is employment for indefinite period, terminable at will of either party, which gives rise to no cause of action against employer for alleged wrongful termination. American Std., Inc. v. Jessee, 150 Ga. App. 663, 258 S.E.2d 240 (1979).
An oral employment contract for a definite term not to be performed within one year was within the statute of frauds. Morgan v. American Ins. Managers, Inc., 239 Ga. App. 635, 521 S.E.2d 676 (1999); Ford Clinic, Inc. v. Potter, 246 Ga. App. 320, 540 S.E.2d 275 (2000).
Oral contract to be performed within six to 15 months.
- Trial court erred in granting summary judgment to the option holder on the one option grantor's breach of contract counterclaim; the trial court found that the contract at issue, an oral contract, violated O.C.G.A. § 13-5-30(5) because it could not be performed within one year and, thus, had to be in writing, but the evidence showed that was not the case because the contract could be performed within six months to 15 months, which meant that the contract did not have to be in writing since the contract could conceivably be performed within one year. Henry v. Blankenship, 275 Ga. App. 658, 621 S.E.2d 601 (2005).
Paragraph (5) of statute of frauds applicable where time for performance dependent on contingency that cannot happen in a year.
- When time when contract is to be performed depends on some contingency, it is within this provision, provided, contingency cannot happen within a year; but if it may happen, it is not within statute, whether it actually does happen or not. Burney v. Ball, 24 Ga. 505 (1858); Brown v. Little, 217 Ga. App. 632, 458 S.E.2d 669 (1995).
Oral agreement to continue from year to year until terminated falls within paragraph (5) of statute of frauds.
- Oral contract of employment which provides that contract shall continue from year to year unless notice of intention to terminate for any succeeding year be given by either party 90 days prior to December 31 of preceding year is within paragraph (5) of the statute of frauds so that such employee cannot maintain action for breach. White v. Simplex Radio Co., 188 Ga. 412, 3 S.E.2d 890 (1939); White v. Simplex Radio Co., 61 Ga. App. 157, 5 S.E.2d 922 (1939).
Oral agreement providing that plaintiff is to have exclusive sale of defendant's products in designated territory and that contract is to continue from year to year until and unless the contract is terminated by either party on or before July 1st of calendar year next preceding business season for sale of defendant's products, falls within paragraph (5) of the statute of frauds. Yarborough v. Hi-Flier Mfg. Co., 63 Ga. App. 725, 12 S.E.2d 133 (1940).
Letter from employer stating increasing levels of salary and opportunities for bonus for each of three years, but not otherwise addressing duration of term of plaintiff's anticipated employment, was insufficient to satisfy requirement that contract of employment for term beyond one year be in writing, nor did plaintiff's terminating prior employment, moving to another state and working for the defendant for two years indicate such partial performance as would remove the case from the statute of frauds. Wheeling v. Ring Radio Co., 213 Ga. App. 210, 444 S.E.2d 144 (1994).
Letter from an employer addressed to "Whom It May Concern," not signed or otherwise concurred in by plaintiff, and not indicating the duties to be performed by plaintiff, the place where the duties were to be executed, any benefits in addition to salary and commission, or a basis upon which the agreement could be terminated, was insufficient to constitute a written contract. Zager v. Brown, 242 Ga. App. 427, 530 S.E.2d 50 (2000).
Letters as to long-term employment sufficiently specific to comply with statute of frauds.
- See Henson v. American Family Corp., 171 Ga. App. 724, 321 S.E.2d 205 (1984).
Documents which merely set forth certain policies and information concerning employment can in no way be interpreted as parts of a written contract governing the length of employment. Nelson v. M & M Prods. Co., 168 Ga. App. 280, 308 S.E.2d 607 (1983).
Affidavit related to employment contract not to be fully performed within one year.
- Chief executive officer was not entitled to partial summary judgment on a claim that an employer did not fund the chief executive officer's deferred compensation plan because: (1) the only evidence of the amount the employer was to contribute was the chief executive officer's self-serving affidavit; and (2) the statute of frauds barred consideration of the affidavit since the chief executive officer's employment contract was not to be performed within one year. Jones v. Hous. Auth. of Fulton County, 315 Ga. App. 15, 726 S.E.2d 484 (2012).
Employment contract for year, to begin in presenti, is not within paragraph (5) of statute of frauds. Hudgins v. State, 126 Ga. 639, 55 S.E. 492 (1906).
Employment contract for more than one year, not signed by either party, violates statute.- When proposed contract of employment was not signed by either party, and cannot be performed within one year, contract's enforcement is barred by statute of frauds. Southeastern Waste Treatment, Inc. v. Chem-Nuclear Sys., 506 F. Supp. 944 (N.D. Ga. 1980).
Presumption as to one-year employment contract which continues after end of year.
- When contract of employment is made for year's service, and at end of year nothing is said or done by either party to terminate the contract, but on contrary employee is allowed to continue on without objection, presumption is that both parties have assented to the contract continuing in force for another year, and oral agreement for another year's employment is therefore not within statute. White v. Simplex Radio Co., 61 Ga. App. 157, 5 S.E.2d 922 (1939).
Commencing performance of employment contract within paragraph (5) of statute of frauds does not remove contract from statute.
- Fact that person who has contracted to serve another for one year, to commence at future day, enters upon performance of the person's contract does not take case out of statute of frauds. Servant may quit at any time and recover value of services in quantum meruit, and master may discharge servant at any time without incurring liability therefor. Norman v. Nash, 102 Ga. App. 508, 116 S.E.2d 624 (1960).
Mere fact that person who has contracted to serve another for one year, to commence at future day, enters upon performance of the person's contract, does not remove case from statute. Alexander-Seewald Co. v. Marett, 53 Ga. App. 314, 185 S.E. 589 (1936), disapproved sub nom. Hudson v. Venture Indus., Inc., 243 Ga. 116, 252 S.E.2d 606 (1979).
Five-year, oral employment contract not removed from statute by performance for four months.
- Oral contract for period of five years, whereby plaintiff was employed as insurance agent of the defendant, to solicit policies of insurance and collect premiums thereon, was not removed from operation of statute of frauds merely because person so employed entered on performance of part of contract for period of three or four months. Dameron v. Liberty Nat'l Life Ins. Co., 56 Ga. App. 257, 192 S.E. 446 (1937).
Contracts involving estates for years are within statute and must be in writing to be effective. Smith v. Top Dollar Stores, Inc., 129 Ga. App. 60, 198 S.E.2d 690 (1973).
Automatic renewal provision does not necessarily render lease one for more than a year.
- Fact that lease provides that the lease will be automatically renewed from year to year in event tenant does not give notice required to contrary does not necessarily make it a lease for longer than one year. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).
Contracts creating relation of landlord and tenant for time exceeding one year must be written. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).
Contract purporting to create relation of landlord and tenant for longer time than one year is required by statute of frauds to be in writing. Cashin v. Markwalter, 208 Ga. 444, 67 S.E.2d 226 (1951); Smith v. Helms, 140 Ga. App. 267, 231 S.E.2d 778 (1976); White v. Orton Indus., Inc., 224 Ga. App. 342, 480 S.E.2d 620 (1997).
Statute inapplicable to contract creating relation of landlord and tenant for less than one year.
- Since enactment of former Code 1933, § 61-102 (see O.C.G.A. § 44-7-2) provisions of statute of frauds did not apply to contract creating relation of landlord and tenant, where made not to exceed one year. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).
Property management company could not be held liable for breach of a lease for a period of more than one year, under O.C.G.A. § 13-5-30(5), when the company did not sign the lease, and was not a party to the lease. O'Connell v. Cora Bett Thomas Realty, Inc., 254 Ga. App. 311, 563 S.E.2d 167 (2002).
Written offer contemplating written acceptance.
- Tenant's offer by letter to renew two-year lease, standing alone, was not sufficient writing to satisfy statute of frauds where the offer contemplated a written acceptance by the lessor. Valiant Steel & Equip., Inc. v. Roadway Express, Inc., 205 Ga. App. 237, 421 S.E.2d 773 (1992).
Applicability of custom to supply deficiency in writing as to duration.
- Where plaintiff relies upon specific contract of employment for one year and does not rely upon any custom of trade that contracts of this character are made for period of one year, such custom cannot be read into contract so as to supply any deficiency in written memorandum to show period of term of contract. Morris v. Virginia-Carolina Chem. Corp., 48 Ga. App. 702, 173 S.E. 486 (1934).
Verbal warranties by vendor guaranteeing the furnace, vacuum system, and oven for one year are unenforceable under the statute of frauds. Grant v. Aulicky, 161 Ga. App. 817, 290 S.E.2d 107 (1982).
Obligation to provide insurance coverage.- Because employer's obligation to provide insurance coverage could have been performed within one year, the statute of frauds did not bar enforcement of the obligation, even though it was not reduced to writing. Vandiver v. Greensboro Lumber Co., 148 Bankr. 973 (Bankr. M.D. Ga. 1992).
Contract for sale of standing timber to be cut without appreciable delay.
- Contract for sale of standing timber which is to be cut and sawed into lumber without appreciable delay after sale does not involve interest in land within meaning of paragraph (4) of the statute of frauds. Seabolt v. Christian, 82 Ga. App. 167, 60 S.E.2d 540 (1950).
Promises to Revive Debts Barred by Statutes of Limitations
New promise or acknowledgment as to debt barred by statute of limitations must identify debt or afford means therefor. Williams v. American Sur. Co., 86 Ga. App. 533, 71 S.E.2d 714 (1952).
Promise containing key by which debt can be identified with aid of extrinsic evidence suffices.
- While new promise or acknowledgment must itself identify debt to be revived or afford sufficient means of identification, if it supplies key by which debt may be identified with aid of extrinsic evidence, it is in this respect sufficient compliance with statute of frauds. National City Bank v. First Nat'l Bank, 193 Ga. 477, 19 S.E.2d 19 (1942).
Two essentials for written acknowledgment to operate as new promise to pay debt.
- While written acknowledgment of existing liability is equivalent to new promise to pay, and, like such promise, will renew right of action already barred by statute of limitations, or create new point of departure for running of statute, such acknowledgment must meet two requirements: that it shall in legal effect have been made by debtor to creditor, and that it shall sufficiently identify debt or afford means of identification with reasonable certainty. Williams v. American Sur. Co., 86 Ga. App. 533, 71 S.E.2d 714 (1952).
Writing designed to toll statute of limitations must connect debt with promise and sufficiently identify debt. Duke v. Lynch, 56 Ga. App. 331, 192 S.E. 535 (1937).
Promise within paragraph (6) of statute of frauds may be ascertained from separate writings written over considerable period of time.
- When promise is evidenced by letters, all letters relating to debt, although separated by considerable period of time, may be taken into consideration in determining whether new promise was made and whether that promise was unconditional. Williams v. American Sur. Co., 86 Ga. App. 533, 71 S.E.2d 714 (1952).
Nature of writings which will create new promise to pay debt barred by statute of limitations.
- When letters acknowledged to have been written by defendant are relied on to create new promise to pay existing open account which on the letters face is barred by statute of limitations, such letters must with reasonable certainty connect debt with promise, and sufficiently identify debt. By the defendant's words, the defendant must acknowledge the particular debt as an existing liability in order to remove bar of statute. Williams v. American Sur. Co., 86 Ga. App. 533, 71 S.E.2d 714 (1952).
Evidence aliunde admissible to prove letters show acknowledgment of debt barred by statute of limitations. Williams v. American Sur. Co., 86 Ga. App. 533, 71 S.E.2d 714 (1952).
Statute of frauds barred oral assumption of debt.
- Summary judgment in favor of a psychiatrist in a consultant's breach of an oral contract claim was proper as the oral assumption by the psychiatrist of the debts of the medical practice that the psychiatrist purchased, including the consultant's fees, was barred by the statute of frauds, O.C.G.A. § 13-5-30(2), because the contract was not in writing; further, as it was conceded that the agreement was secondary in nature and not an original undertaking, claims that the contract was established pursuant to former O.C.G.A. § 24-4-24 (see now O.C.G.A. § 24-14-26) lacked merit. Grumet v. Bunt, 279 Ga. App. 728, 632 S.E.2d 486 (2006).
Commitment to Lend Money
Requirement of a signed writing for a "commitment to lend money" includes promises to refinance existing debts. Stedry v. Summit Nat'l Bank, 227 Ga. App. 511, 489 S.E.2d 862 (1997).
Document referencing oral commitment.
- Documents containing a reference to an oral commitment to make a loan and to the terms of a proposed loan, without any written commitment to make a loan, did not satisfy the requirements of O.C.G.A. § 13-5-30. Kamat v. Allatoona Fed. Sav. Bank, 231 Ga. App. 259, 498 S.E.2d 152 (1998).
Additional loan.
- Enforcement of alleged oral agreement to extend an additional loan to borrower to complete construction of expanded buildings was barred by paragraph (7) of O.C.G.A. § 13-5-30. Bridges v. Reliance Trust Co., 205 Ga. App. 400, 422 S.E.2d 277 (1992).
Future operating loans.
- Alleged oral agreements concerning future operating loans were barred by paragraph (7) of O.C.G.A. § 13-5-30. Moore v. Bank of Fitzgerald, 225 Ga. App. 122, 483 S.E.2d 135 (1997).
Oral discussion to lend money.
- Discussion between a lender and a potential debtor as to the possibility of a future loan did not raise a question of any validity or liability under the statute of frauds, O.C.G.A. § 13-5-30. Northwest Carpets, Inc. v. First Nat'l Bank, 280 Ga. 535, 630 S.E.2d 407 (2006).
Agreements Involving Insurance
Common-law rule that insurance contracts need not be written, not in force in Georgia.
- Common-law rule that contracts of insurance need not be in writing in order to be valid prevails in most if not all of states of the union except Georgia. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136, answer conformed to, 47 Ga. App. 665, 171 S.E. 143 (1933).
Suit cannot be maintained upon parol renewal of insurance policy. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136, answer conformed to, 47 Ga. App. 665, 171 S.E. 143 (1933).
Insurance policies issued on cash basis, as well as on credit basis, must be written.
- Rule that policy of insurance shall be in writing and signed by insurer applies to contracts issued upon cash basis as well as to those issued upon credit basis. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136, answer conformed to, 47 Ga. App. 665, 171 S.E. 143 (1933).
It does not follow from former Civil Code 1910, §§ 2470 and 2499 that a policy of fidelity insurance must be written. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136, answer conformed to, 47 Ga. App. 665, 171 S.E. 143 (1933).
Policy of fidelity insurance, like contract of indemnity, need not be written.
- Policy of fidelity insurance is in effect a contract of indemnity; and as such is not within the statute of frauds and need not be in writing. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136, answer conformed to, 47 Ga. App. 665, 171 S.E. 143 (1933).
Lack of essential terms.
- Merger clause in an umbrella insurance policy containing a non-renewal clause extinguished the insurer's earlier letter stating that the policy would be renewed for three years, and even if the letter was not extinguished, it was unenforceable under the statute of frauds, O.C.G.A. § 13-5-30(5), because, due to the three-year term, it could not be performed within one year, and further, the letter did not contain the essential terms required under O.C.G.A. § 13-5-30(5), as the letter did not specify the consideration paid for the three-year term, which had to be separate and apart from the policy premium. Werner Enters. v. Markel Am. Ins. Co., 448 F. Supp. 2d 1375 (N.D. Ga. 2006).
Insurer's promise to pay claim against insured need not be written.
- When insurer agrees to settle the insurer's potential liability as well as potential liability of insured, promise by insurer to settle or pay claim against insured is original undertaking and need not be in writing. Klag v. Home Ins. Co., 116 Ga. App. 678, 158 S.E.2d 444 (1967).
Contract between injured party and insurer, settling alleged claim, need not be written.
- Even though it is executory, parol contract between injured party and liability insurance carrier of another settling alleged claim is not contract by insurer to answer for debt, default, or miscarriage of another nor is it a contract not to be performed within one year of making thereof, though no express time limit is stated for contract's consummation, and therefore contract need not be in writing. Klag v. Home Ins. Co., 116 Ga. App. 678, 158 S.E.2d 444 (1967).
Effect of Full or Part Performance
Editor's Note.
- Additional annotations regarding part performance as removing agreement from operation of statute of frauds appear under O.C.G.A. § 13-5-31, which section specifically addresses that issue.
Must be certain and definite.
- Parol contract sought to be enforced based on part performance must be certain and definite in all respects. Lemming v. Morgan, 228 Ga. App. 763, 492 S.E.2d 742 (1997).
Removal of revocable, oral agreement from statute by execution.
- Oral agreement or license, revocable on death of licensor, is taken out of statute of frauds and becomes irrevocable where party executes agreement or license and incurs expense in doing so. Smith v. Fischer, 59 Ga. App. 791, 1 S.E.2d 684 (1939).
Guaranty enforceable without execution date.
- Express language of a personal guaranty for present and future debts owed by the borrower meant that the guarantor's obligations had no temporal limitation. Therefore, an execution date was not required to identify the debt covered, and the guaranty satisfied the statute of frauds, O.C.G.A. § 13-5-30(2), although the guaranty had no date. Brzowski v. Quantum Nat'l Bank, 311 Ga. App. 769, 717 S.E.2d 290 (2011).
Full performance under subsequent oral agreement as defense to suit on original written contract.
- If parties have abandoned terms of original contract and fully performed oral agreement subsequently entered into, such agreement and performance may be pled and proved in defense to suit on original contract. Planters Cotton-Oil Co. v. Bell, 54 Ga. App. 433, 188 S.E. 41 (1936).
Full performance on one side removes oral agreement to deliver deed from statute.
- Even though promise to perform certain duties in exchange for delivery of deed is oral, where there has been full performance on one side (payment of purchase price and acceptance of possession and deed), transaction is outside statute of frauds. Helmer v. Hegidio, 133 Ga. App. 168, 210 S.E.2d 332 (1974).
Payment in full on oral contract for sale of land.
- In a suit for specific performance brought by a plaintiff seeking to enforce an alleged oral contract to sell real property, the trial court erred in granting summary judgment to the defendant based on the statute of frauds preventing recovery to the plaintiff; the plaintiff had presented evidence establishing the existence of an oral contract for the sale of the property and that it was excepted from the statute of frauds based on the plaintiff's performance of paying for the property in full, and thus, issues of fact remained as to whether defendant's decedent had accepted performance through payments received by a sibling and whether, in light of the plaintiff's previous tenancy, the plaintiff's performance was inconsistent with the lack of a contract to sell the property. Edwards v. Sewell, 289 Ga. App. 128, 656 S.E.2d 246 (2008).
Performance by one in accordance with contract, accepted by other party, removes contract from statute. Blanton v. Moseley, 133 Ga. App. 144, 210 S.E.2d 368 (1974).
In a dispute over installment contract to purchase land, because evidence sufficiently showed that a buyer partially performed a subsequent oral agreement that was not barred by merger clause contained in the contract, and the seller accepted the benefit of such performance, summary judgment to the seller was erroneous; moreover, given that jury questions as to part performance of the oral agreement remained, order denying the buyer's partial summary judgment motion was upheld. Hernandez v. Carnes, 290 Ga. App. 730, 659 S.E.2d 925 (2008).
District court erred in granting a company judgment on the pleadings as to an investment broker's breach-of-contract claim because the broker adequately pled that the company assented, by the company's conduct, to an engagement letter's terms, and the statute of frauds under O.C.G.A. § 13-5-30(5) did not foreclose enforcing the unsigned letter since the allegations, accepted as true, were sufficient to invoke the performance and acceptance exception to the statute of frauds under O.C.G.A. § 13-5-31(2). Hemispherx Biopharma, Inc. v. Mid-South Capital, Inc., 690 F.3d 1216 (11th Cir. 2012).
Acts preparatory or preliminary to performance insufficient as part performance to circumvent paragraph (5) of statute of frauds.
- Acts which are merely preparatory or preliminary to performance of contract terminable at will of either party are not sufficient as part performance to circumvent paragraph (5) of statute of frauds. Utica Tool Co. v. Mitchell, 135 Ga. App. 635, 218 S.E.2d 650 (1975).
Former employer's claim that a former employee breached an oral nonsolicitation agreement that was part of the employee's promotion was barred by the statute of frauds in O.C.G.A. § 13-5-30 because the nonsolicitation agreement could not be performed within one year from the agreement's making, as the agreement would not become effective until a date after the making of the contract, to wit, the date of the employee's termination, and then would run for one year from that date; further, the employee's actions in accepting the promotion and working in the new position did not constitute such part performance as would remove the oral agreement from the statute of frauds pursuant to O.C.G.A. § 13-5-31(2), (3) because mere entry into employment and performance of services for part of the term was not inconsistent with employment terminable at will without a contract, and thus, the part performance was not consistent with the existence of a contract. Outsourcing P'ship, LLC v. Vinson, F. Supp. 2d (N.D. Ga. Aug. 8, 2006).
Nature of part performance required to obviate statute.
- Part performance is something substantial and essential to contract which results in benefit to one party and detriment to the other. It is not every part performance of oral contract that will take it outside statute of frauds. Norman v. Nash, 102 Ga. App. 508, 116 S.E.2d 624 (1960).
Part performance required to obviate statute of frauds must be substantial and essential to contract, which results in benefit to one party and detriment to other. Utica Tool Co. v. Mitchell, 135 Ga. App. 635, 218 S.E.2d 650 (1975); Metzgar v. Reserve Ins. Co., 149 Ga. App. 404, 254 S.E.2d 517 (1979).
To constitute part performance in order to remove an agreement from the writing requirement of the statute of frauds, the partial performance must be substantial and essential to the contract. Richard A. Naso & Assocs. v. Diffusion, 194 Ga. App. 201, 390 S.E.2d 106 (1990).
Whether part performance is such as to remove contract from statute is question of fact.
- When it is contended that petition shows such part performance of contract on part of plaintiff as to render it fraud on part of defendants to refuse compliance with its terms, what amounts to such part performance is question of fact. Norman v. Nash, 102 Ga. App. 508, 116 S.E.2d 624 (1960).
Payment of interest insufficient to invoke part performance.
- Borrower's payment of interest while waiting for the bank to refinance borrower's debt pursuant to an alleged oral promise did not invoke part performance or promissory estoppel as an exception to O.C.G.A. § 13-5-50. Stedry v. Summit Nat'l Bank, 227 Ga. App. 511, 489 S.E.2d 862 (1997).
Part payment of purchase money alone is insufficient part performance to remove agreement from statute. Rush v. Autry, 210 Ga. 732, 82 S.E.2d 866 (1954).
Part payment of purchase money, accompanied by possession, removes transaction from statute.
- While payment of part of purchase money is not alone such part performance as will take case out of statute of frauds, if accompanied by possession it will amount to such part performance. Aldridge v. Whaley, 218 Ga. 611, 130 S.E.2d 124 (1963).
Partial payment of the purchase money accompanied by possession of the property may remove an oral contract from the operation of paragraph (4) of the statute of frauds. Stephens v. Trotter, 213 Ga. App. 596, 445 S.E.2d 359 (1994).
When partnership rented property from a partner, made annual payments on a loan secured by the property and paid the loan off, the evidence was sufficient to raise a jury question as to whether the parol agreement of the parties should have been removed from the statute of frauds and whether there was partial performance accompanied by possession. Singleton v. Terry, 262 Ga. App. 151, 584 S.E.2d 613 (2003).
Although there was no purchase money resulting trust created under O.C.G.A. §§ 53-12-90,53-12-91, and53-12-92, a decedent's mother was entitled to an equity interest in property of the deceased daughter because a constructive trust was established under former O.C.G.A. § 53-12-93(a). Moreover, there was evidence of a gift of land under O.C.G.A. § 23-2-132, as an exception to the statute of frauds under O.C.G.A. § 13-5-30, in that the mother lived on the property, made valuable improvements, and paid meritorious consideration. Oliver v. 4708 Old Highgate Entry, F. Supp. 2d (N.D. Ga. Apr. 21, 2009).
Part performance as will obviate operation of paragraph (3) of statute of frauds.
- Part performance relied on to take case out of statute of frauds must have been done strictly with reference to contract; if referable to anything else it is not available. Taylor v. Boles, 191 Ga. 591, 13 S.E.2d 352 (1941).
Part performance established.
- Buyer orally agreed to build a bridge for the seller in exchange for 10 acres of land, and began working on the bridge before a written contract was prepared, evidence permitted the jury to find that the buyer's part performance was sufficient to avoid the Georgia statute of frauds, O.C.G.A. § 13-5-30. Investment Props. Co. v. Watson, 278 Ga. App. 81, 628 S.E.2d 155 (2006).
Defendant was properly convicted of felony theft by taking in violation of O.C.G.A. § 16-8-2 for failing to transmit to a law firm payments the defendant received for indigent defense work because the statute of frauds, O.C.G.A. § 13-5-30(5), was not implicated; the firm performed the firm's part of the parties' agreement in paying the defendant a salary, providing rent-free office space, and offering administrative support, among other things. Clarke v. State, 317 Ga. App. 471, 731 S.E.2d 100 (2012).
Part performance not established.
- Sellers were properly granted summary judgment in an action filed by a buyer arising out of an oral land sales contract given that: (1) no evidence of the buyer's partial performance existed sufficient to remove the contract from the statute of frauds; (2) a wetlands study and interest rate negotiation were not a part of the contract; and (3) a later negotiated contract was an arm's length transaction, the price of which was negotiated at the time, and hence, did not relate to the original contract. Payne v. Warren, 282 Ga. App. 524, 639 S.E.2d 528 (2006).
Consummation of marriage insufficient performance to remove contract from paragraph (3) of the statute of frauds.
- Contract for adoption of minor child, made in consideration of marriage of father of child, is within statute of frauds, and consummation of marriage is not sufficient performance to take contract outside statute. Fargason v. Pope, 197 Ga. 848, 31 S.E.2d 37 (1944).
Marriage not part performance as will avoid paragraph (3) of statute of frauds.
- Performance of agreement by subsequent marriage does not remove contract from operation of statute. Taylor v. Boles, 191 Ga. 591, 13 S.E.2d 352 (1941).
Marriage is not such part performance of parol agreement, made on consideration of marriage, as will take case out of the statute of frauds. Guffin v. Kelly, 191 Ga. 880, 14 S.E.2d 50 (1941).
When oral agreement to adopt child is part of oral agreement of defendant to marry plaintiff, subsequent marriage, relation, and conduct between parties is insufficient to authorize specific performance of alleged contract to adopt. Maddox v. Maddox, 224 Ga. 313, 161 S.E.2d 870 (1968).
Oral promise by one party to convey one-half undivided interest in property to another party upon marriage of parties is within statute of frauds and subsequent marriage is not part performance so as to make the promise enforceable. Hayes v. Hayes, 238 Ga. 276, 232 S.E.2d 556 (1977).
Part performance as will obviate operation of paragraph (4) of statute of frauds.
- When defendant's possession was by virtue of contract of sale, and improvements of property were made with knowledge and approval of plaintiffs and in connection with contract of sale, such possession and improvements were sufficient to remove cause from prohibition of paragraph (4) of statute of frauds, and to bring it within provisions of paragraph (3) of former Code 1933, § 20-402 (see O.C.G.A. § 13-5-31). Higdon v. Dixon, 203 Ga. 67, 45 S.E.2d 423 (1947).
While contract involving any interest in land must be in writing to bind parties, paragraph (4) of statute of frauds does not extend to cases when there has been such part performance of contract as would render it fraud of party refusing to comply, if court did not compel performance. Kinney v. Youngblood, 216 Ga. 354, 116 S.E.2d 608 (1960).
Oral contract for sale of land will be recognized and enforced when there has been such part performance of contract as would render it fraud of party refusing to comply, if court did not compel performance. Osborne v. Martin, 136 Ga. App. 86, 220 S.E.2d 19 (1975).
When a party orally stated to a landlord that the party had assumed a lease for the remainder of the lease's renewal term and had accepted condemnation proceeds awarded to the leasehold interest, the party's performance was sufficient to remove the contract from the statute of frauds and the resulting implied contract was sufficient to support an action on a distress warrant. Powell v. Estate of Austin, 218 Ga. App. 446, 462 S.E.2d 378 (1995).
Part performance as will obviate operation of paragraph (5) of statute of frauds.
- Performance of services under oral contract of employment for part of term is not such part performance as renders it a fraud upon party performing for employer to refuse to comply, by discharge of that party before expiration of term. This is true, notwithstanding person performing services, after person executed contract, and began to render services under the contract, refused offer of employment elsewhere. Morris v. Virginia-Carolina Chem. Corp., 48 Ga. App. 702, 173 S.E. 486 (1934).
Performance of services under oral employment contract within statute for part of term is not such part performance as renders it fraud upon party performing for employer to refuse to comply, by discharge of that party before expiration of term. Utica Tool Co. v. Mitchell, 135 Ga. App. 635, 218 S.E.2d 650 (1975).
When alleged agreement is oral, with no set termination date agreed upon, in order for agreement to become enforceable there must be such part performance of agreeent as would render it fraud of party refusing to comply. Moorman Ingram Tractors, Inc. v. Harrington Mfg. Co., 146 Ga. App. 398, 247 S.E.2d 159 (1978).
Because there was some evidence of either full or part performance sufficient to take the oral contract out of the statute of frauds, the trial court did not err in denying defendant's motion to dismiss on basis of paragraph (5) of O.C.G.A. § 13-5-30. Haehn v. Alheit, 212 Ga. App. 252, 441 S.E.2d 529 (1994).
Consistency with presence of contract required.
- Insurer's pre-policy letter stating that an insured's umbrella policy would be renewed for three years was unenforceable under the statute of frauds, O.C.G.A. § 13-5-30(5), because, due to the three-year term, the policy could not be performed within one year, and the part performance exception of O.C.G.A. § 13-5-31(3) did not apply because the insured's purchase of another policy from the insurer, following the insurer's cancellation at the end of the first year, with a different premium and rate than stated in the letter, was inconsistent with the existence of a contract for a three-year rate guarantee. Werner Enters. v. Markel Am. Ins. Co., 448 F. Supp. 2d 1375 (N.D. Ga. 2006).
Accepting reduced rent waived landlord's claim to original lease amount.
- Trial court did not err by rejecting a landlord's claim for the difference in unpaid rent for a certain time period because there was evidence to support the trial court's finding that even if the landlord orally agreed to a reduced rent for three months, the landlord waived the landlord's right to insist on the original lease payment terms when the lessee tendered and the landlord accepted reduced rent payments before the landlord gave notice of the landlord's intent to reinstate the rent payment terms of the original lease. Jaraysi v. Sebastian, 318 Ga. App. 469, 733 S.E.2d 785 (2012), overruled on other grounds by George v. Hercules Real Estate Servs., 795 S.E.2d 81 (Ga. Ct. App. 2016).
Pleadings and PracticeStatute of frauds is an affirmative defense that must be specially pleaded. Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91 (5th Cir. 1976).
Defense of statute must be pled. Hotel Candler, Inc. v. Candler, 198 Ga. 339, 31 S.E.2d 693 (1944).
Specific pleading required.
- As a general rule, for defendant to avail oneself of statute of frauds defendant must specially plead the statute. Bentley v. Johns, 19 Ga. App. 657, 91 S.E. 999 (1917).
Statute must be pled. Smith v. Marbut-Williams Lumber Co., 37 Ga. App. 239, 139 S.E. 590 (1927).
Defense of statute of frauds must be specifically raised, and cannot be insisted upon in an appellate court, unless record shows that it was raised in trial court. Pope v. Lovett, 188 Ga. 524, 4 S.E.2d 152 (1939).
Statute of frauds has no application in case where it is not specially pled. Carroll v. Witter, 75 Ga. App. 632, 44 S.E.2d 165 (1947).
O.C.G.A. § 9-11-8(c) specifically lists the statute of frauds as an affirmative defense that must be raised by pleading or be waived. Brantley Co. v. Simmons, 196 Ga. App. 233, 395 S.E.2d 656 (1990).
Defense of statute of frauds is waived unless specially pled. Powell Paving Co. v. Scott, 47 Ga. App. 401, 170 S.E. 529 (1933); Southern Intermodal Logistics, Inc. v. Smith & Kelly Co., 190 Ga. App. 584, 379 S.E.2d 612 (1989).
Failure to plead statute is to waive the defense, since it is a plea in the nature of personal privilege, of which one can avail oneself or not as one wishes. Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225, 119 S.E.2d 63 (1961).
Compliance with statute of frauds must be raised in trial court.
- Unless defense that contract relied on by opposite party is unenforceable for lack of compliance with statute of frauds is raised in trial court, right to raise the defense will be deemed to have been waived. Miller v. Smith, 6 Ga. App. 447, 65 S.E. 292 (1909).
Defense under statute of frauds must be raised in trial court or the defense will be deemed to have been waived. Bland v. Davison-Paxon Co., 83 Ga. App. 468, 64 S.E.2d 350 (1951), overruled on other grounds, Almon v. R.H. Macy & Co., 106 Ga. App. 123, 126 S.E.2d 641 (1962).
Order dismissing the plaintiff's complaint asserting claims for fraud, interference with the expectation of a gift or inheritance, and constructive trust was affirmed because the fraud claim was based on deeds that were never executed; thus, such deeds were unenforceable on their face and it was impossible for the plaintiff to prove that the plaintiff justifiably relied on the deeds. Copeland v. Miller, 347 Ga. App. 123, 817 S.E.2d 692 (2018).
Defendant may avail oneself of statute by motion to nonsuit.
- Absent plea of statute of frauds, defendant can avail oneself of this defense by timely motion to nonsuit case. Bentley v. Johns, 19 Ga. App. 657, 91 S.E. 999 (1917).
Issue in pretrial order.
- Although there is no statutory requirement for it, statute of frauds must be raised by affirmative plea, which must set forth section of statute relied upon, or there must be a timely motion for nonsuit, or objection to testimony must be made so as to invoke ruling in trial court on statute. Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225, 119 S.E.2d 63 (1961).
In an action alleging breach of lease agreement, even if the defense of the statute of frauds was omitted from the pretrial order, the trial court should have found it was implicitly added where evidence of an alleged oral guarantee was admitted and the issue was actually litigated. Hathaway v. Bishop, 214 Ga. App. 870, 449 S.E.2d 318 (1994).
Plea in bar, of which statute of frauds is one, may be contained in answer. Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225, 119 S.E.2d 63 (1961).
Defense of statute is personal, and cannot be interposed by strangers to agreement. Gilbert Hotel No. 22, Inc. v. Black, 67 Ga. App. 221, 19 S.E.2d 796 (1942).
Defense is personal privilege.
- Defense of statute of frauds, like that of plea of usury, is in nature of a personal privilege, of which defendant may avail oneself or not, as defendant sees fit. Draper v. Macon Dry Goods Co., 103 Ga. 661, 30 S.E. 566, 68 Am. St. R. 136 (1898); Tift v. Wight & Wesloskey Co., 113 Ga. 681, 39 S.E. 503 (1901).
Plea or contention based on statute of frauds is personal to parties to agreement claimed to be within statute. Blanton v. Moseley, 133 Ga. App. 144, 210 S.E.2d 368 (1974).
Lessor cannot complain that lease was transferred by lessee in violation of statute. Gilbert Hotel No. 22, Inc. v. Black, 67 Ga. App. 221, 19 S.E.2d 796 (1942).
One invoking protection of statute must affirmatively show contract not written.
- In suit for specific performance of contract for sale of land required to be in writing by the statute of frauds when allegations of petition do not affirmatively show that contract rested merely in parol, it will be presumed, upon demurrer (now motion to dismiss), that contract was in writing. Crovatt v. Baker, 130 Ga. 507, 61 S.E. 127 (1908).
When defendant in suit upon contract invokes protection of statute of frauds, burden is upon the defendant to affirmatively show that contract is not in writing; failure of evidence to show that contract is in writing is not sufficient to bring contract within statute. Arrington v. Horton, 48 Ga. App. 272, 172 S.E. 677 (1934).
Failure to allege contract is written raises no presumption that contract is parol. Freeman v. Matthews, 6 Ga. App. 164, 64 S.E. 716 (1909).
Contract within statute of frauds presumed to meet requirement of statute that contract be written. Arrington v. Horton, 48 Ga. App. 272, 172 S.E. 677 (1934).
If contract is of kind required by statute of frauds to be in writing, presumption is that it was in writing. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).
It is not to be presumed that contract was not in writing. Long v. Lewis, 16 Ga. 154 (1854).
Court required to submit statute of frauds defense to jury.
- See National Indep. Theatre Exhibitors, Inc. v. Charter Fin. Group, Inc., 747 F.2d 1396 (11th Cir. 1984), cert. denied, 471 U.S. 1056, 105 S. Ct. 2120, 85 L. Ed. 2d 484 (1985).
Improper refusal to charge on the statute of frauds was compounded by charging that an oral contract of guarantee is as valid as a written guarantee and constituted harmful error. Hathaway v. Bishop, 214 Ga. App. 870, 449 S.E.2d 318 (1994).
Jury instructions.
- Trial court did not err by failing to instruct the jury on the Statute of Frauds because, while the defendant made an oral, non-specific request, the defendant did not offer a written charge adjusted to the facts of the case; the defendant did not include the defense of Statute of Frauds in the pretrial order and did not move to modify that order; the defendant did not raise the defense of the Statute of Frauds simply by stating that the defendant intended to rely on all applicable statutes governing contracts and all applicable legal principles and rules of contract law, quasi-contracts, and equitable remedies and relief; and the defendant's promise to the plaintiffs was one of indemnity, which generally fell outside the Statute of Frauds. Zambetti v. Cheeley Invs., L.P., 343 Ga. App. 637, 808 S.E.2d 41 (2017).
Solemn admission in judicio.
- Trial court properly granted a seller's motion for partial summary judgment, and denied the escrow agent's motion to dismiss, in the seller's suit to recover the earnest money deposited by the buyers as the buyers admitted in their answer that the buyers knew the identity and location of the property, and although the buyers later amended the buyers answer to raise a Georgia statute of frauds, O.C.G.A. § 13-5-30, defense, the buyers never withdrew the buyers admission, and the buyers and the escrow agent were bound by the admission; the admission constituted a solemn admission in judicio under former O.C.G.A. § 24-4-24(b)(7) (see now O.C.G.A. § 24-14-26), and created a conclusive presumption of law under former subsection (a) of that section. Nhan v. Wellington Square, LLC, 263 Ga. App. 717, 589 S.E.2d 285 (2003).
Preliminary injunction not granted as legal determination of statute of frauds required.
- Because a legal determination had to be made as to whether the common law statute of frauds or O.C.G.A. § 13-5-30 applied prior to a determination of whether there existed an enforceable contract between a buyer and seller of carbon dioxide, the buyer failed to meet the buyer's burden to show a substantial likelihood of success on the merits for entitlement to a preliminary injunction. Air Liquide Indus. United States LP v. First United Ethanol, LLC, F. Supp. 2d (M.D. Ga. May 30, 2008).
OPINIONS OF THE ATTORNEY GENERAL
Distinction between easements and licenses.
- There is a distinction between a privilege or easement, carrying interest in land, which requires writing within statute of frauds to support the privilege of easement, and license which gives authority to do particular act or series of acts upon land of another for purpose of improvement only, without possessing any estate therein; such license is not within statute. 1958-59 Op. Att'y Gen. p. 285.
RESEARCH REFERENCES
Am. Jur. 2d.
- 28 Am. Jur. 2d, Executors and Administrators, §§ 194, 216, 319. 67 Am. Jur. 2d, Sales, § 97 et seq. 72 Am. Jur. 2d, Statute of Frauds, §§ 4, 10 et seq., 49 et seq., 113, 124 et seq. 73 Am. Jur. 2d, Statute of Frauds, §§ 459, 463. 77 Am. Jur. 2d, Vendor and Purchaser, §§ 3, 4.
23 Am. Jur. Pleading and Practice Forms, Statute of Frauds, § 2.
Damages for Brach of Contract to Lend Money, 41 POF2d 337.
C.J.S.- 17 C.J.S., Contracts, §§ 4, 71. 17A C.J.S., Contracts, § 331.
ALR.
- Validity and effect of oral agreement in alternative, one of the alternatives being within the statute of frauds, 13 A.L.R. 271.
Contracts relating to corporate stock as within provisions of statute of frauds dealing with sales of goods, etc., 14 A.L.R. 394; 59 A.L.R. 597.
Oral contracts of insurance, 15 A.L.R. 995; 69 A.L.R. 559; 92 A.L.R. 232.
Applicability of statute of frauds to joint adventure or partnership to deal in real estate, 18 A.L.R. 484; 95 A.L.R. 1242; 128 A.L.R. 1520.
Check or note as memorandum satisfying statute of frauds, 20 A.L.R. 363; 153 A.L.R. 1112.
Signing of contract by agent of undisclosed principal as satisfying statute of frauds, 23 A.L.R. 932; 138 A.L.R. 330.
Re-exchange: rate or date at which exchange is to be computed, 27 A.L.R. 1189.
Name of principal or of authorized agent, in body of instrument, as satisfying statute of frauds where transaction was not conducted by him, 28 A.L.R. 1114.
Effect of statute of frauds upon the right to modify by subsequent parol agreement, a written contract required by the statute to be in writing, 29 A.L.R. 1095; 80 A.L.R. 539; 118 A.L.R. 1511.
Trade custom or usage to explain or supply essential terms in writing required by statute of frauds (or Sales Act) in sale of goods, 29 A.L.R. 1218.
Necessity of statement in writing of consideration or price for sale of goods or choses in action in order to satisfy statute of frauds, 30 A.L.R. 1163; 59 A.L.R. 1422.
Agreement to release, discharge, or assign real estate mortgage as within statute of frauds, 32 A.L.R. 874.
Character and extent of improvements necessary to constitute part performance, 33 A.L.R. 1489.
Acceptance which will satisfy statute of frauds where purchaser of goods is in possession at time of sale, 36 A.L.R. 649; 111 A.L.R. 1312.
Statute of frauds as affecting agreement with subpurchaser of realty, 38 A.L.R. 1348.
Accepting paid employment or remaining in such employment as part performance which will take oral contract to convey or devise real property out of statute of frauds, 40 A.L.R. 223.
Sale or contract for sale of standing timber as within provisions of statute of frauds respecting sale of contract of sale of real property, 7 A.L.R.2d 517.
Sufficiency of memorandum of lease agreement to satisfy the statute of frauds, as regards terms and conditions of lease, 16 A.L.R.2d 621.
Sufficiency of description or designation of land in contract or memorandum of sale, under statute of frauds, 23 A.L.R.2d 6.
Necessity and sufficiency of statement of consideration in contract or memorandum of sale of land, under statute of frauds, 23 A.L.R.2d 164.
Construction and effect of exception making the statute of frauds provision inapplicable where goods are manufactured by seller for buyer, 25 A.L.R.2d 672.
Rights of parties under oral agreement to buy or bid in land for another, 27 A.L.R.2d 1285.
Oral contract for personal services so long as employee is able to continue in work, to do satisfactory work, or the like, as within statute of frauds relating to contracts not to be performed within year, 28 A.L.R.2d 878.
Validity of oral promise or agreement not to revoke will, 29 A.L.R.2d 1229.
Effect of attempted cancelation or erasure in memorandum otherwise sufficient to satisfy statute of frauds, 31 A.L.R.2d 1112.
Statute of frauds: promise by stockholder, officer, or director to pay debt of corporation, 35 A.L.R.2d 906.
Agreement between brokers as within statute requiring agreements for commissions for the sale of real estate to be in writing, 44 A.L.R.2d 741.
Sufficiency, under the statute of frauds, of description or designation of land in contract or memorandum of sale which gives right to select the tract to be conveyed, 46 A.L.R.2d 894.
Joint adventure agreement for acquisition, development, or sale of land as within provision of statute of frauds governing broker's agreement for commission on real-estate sale, 48 A.L.R.2d 1042.
Contract to support, maintain, or educate a child as within provision of statute of frauds relating to contracts not to be performed within a year, 49 A.L.R.2d 1293.
Employee's rights with respect to compensation or bonus where he continues in employer's service after expiration of contract for definite term, 53 A.L.R.2d 384.
Applicability of statute of frauds to promise to pay for medical, dental, or hospital services furnished to another, 64 A.L.R.2d 1071.
What constitutes promise made in or upon consideration of marriage within statute of frauds, 75 A.L.R.2d 633.
Enforceability, under statute of frauds provision as to contracts not to be performed within a year, or oral employment contract for more than one year but specifically made terminable upon death of either party, 88 A.L.R.2d 701.
Statute of frauds: will or instrument in form of will as sufficient memorandum of contract to devise or bequeath, 94 A.L.R.2d 921.
Applicability of parol evidence rule in favor of or against one not a party to contract of release, 13 A.L.R.3d 313.
Landlord's liability for damage to tenant's property caused by water, 35 A.L.R.3d 143.
Applicability of statute of frauds to agreement to rescind contract for sale of land, 42 A.L.R.3d 242.
Statute of frauds: validity of lease or sublease subscribed by one of the parties only, 46 A.L.R.3d 619.
Enforcement of antenuptial contract or settlement conditioned upon marriage, where marriage was subsequently declared void, 46 A.L.R.3d 1403.
Action by employee in reliance on employment contract which violates statute of frauds as rendering contract enforceable, 54 A.L.R.3d 715.
Right of owner to recover for work or material expended on his own real property in reliance upon a void or unenforceable contract for its rental or sale, 64 A.L.R.3d 1191.
Spouse's secret intention not to abide by written antenuptial agreement relating to financial matters as ground for annulment, 66 A.L.R.3d 1282.
Application of parol evidence rule in action on contract for architect's services, 69 A.L.R.3d 1353.
Construction and application of UCC § 2-201(3)(c) rendering contract of sale enforceable notwithstanding statute of frauds with respect to goods for which payment has been made and accepted or which have been received and accepted, 97 A.L.R.3d 908.
Check given in land transaction as sufficient writing to satisfy statute of frauds, 9 A.L.R.4th 1009.
Promise by one other than principal to indemnify one agreeing to become surety or guarantor as within statute of frauds, 13 A.L.R.4th 1153.
Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.
Separation agreements: enforceability of provision affecting property rights upon death of one party prior to final judgment of divorce, 67 A.L.R.4th 237.
Applicability of statute of frauds to promise to pay for legal services furnished to another, 84 A.L.R.4th 994.
Promissory estoppel of lending institution based on promise to lend money, 18 A.L.R.5th 307.
Satisfaction of statute of frauds by e-mail, 110 A.L.R.5th 277.
Sufficiency of description of terms and conditions of lease, or lease provision, so as to comply with statute of frauds, 12 A.L.R.6th 123.