Johns v. Nix

20 S.E.2d 758, 194 Ga. 152

• Court: Supreme Court of Georgia
• Decided: May 26, 1942
• Docket: 14029.
• Status: Published

Opinion

Atkinson, Presiding Justice.

1. So far as it might be contended that the plaintiff would be entitled to recover upon the theory of a parol gift, such contention must fail, because no gift was alleged with sufficient definiteness, nor was it alleged that valuable improvements were erected upon the property upon the faith of the donor’s promise or declared intention to malee a gift. Code, §§ 37-802, 37-804; Holland v. Atkinson, 112 Ga. 346 (37 S. E. 380); Swan Oil Co. v. Linder, 123 Ga. 550, 553 (51 S. E. 622); Hodgson v. Hodgson, 28 Ga. App. 250 (110 S. E. 754).

2. If the plaintiff could recover as contended for in Coffey v. Cobb, 140 Ga. 661 (79 S. E. 568), 146 Ga. 689 (92 S. E. 57), upon the theory of an oral contract of purchase and sale, the fact that such contract was made must be clearly alleged (Swan Oil Co. v. Linder, supra), and all the material terms of the contract should be clearly stated. F. & W. Grand Stores v. Eiseman, 160 Ga. 321 (127 S. E. 872). The decision cited dealt with indefiniteness of a written instrument. Where the supposed contract-is oral as in the instant case, there is at least the same or a greater necessity for definiteness in stating the terms of the agreement. See Taylor v. Boles, 191 Ga. 591, 599 (13 S. E. 2d, 352), and cit.

3. Under the foregoing principles the petition failed to allege a cause of action, and the court erred in overruling the general demurrer.

Judgment reversed.

All the Justices concur. W. S. Northcutt, for plaintiff in error. J. 0. Bowden and A. Guy Smith, contra.