The court did not err in overruling the general demurrer.
DECIDED SEPTEMBER 26, 1947. REHEARING DENIED OCTOBER 24, 1947. T. M. Deal filed a petition in the Superior Court of Fulton County against J. M. Moore, alleging the breach of a contract to form a partnership. Since counsel for the plaintiff admit that the statement of facts contained in the brief of the defendant is substantially correct we have adopted this statement here save for some slight changes to make the statement comply strictly with the petition. The plaintiff alleged that the defendant was indebted to him *Page 824 for $80,000; that the defendant was engaged in the wholesale meat business, buying livestock on the hoof and slaughtering it and reselling to wholesale and retail Butchers; that the slaughtering was performed at the United Butchers' Abattoir under a contract that was to expire May 31, 1946; that the plaintiff was an employee and office worker of the defendant at a salary of $350 per month, his term of employment having commenced on January 1, 1946; that the defendant anticipated difficulties in reaching an agreement with United Butchers' Abattoir to continue his slaughtering after May 31, 1946, that the defendant attempted to construct his own abattoir but had been unsuccessful in obtaining a contract for the construction; on February 10, 1946, the defendant made a social call at the plaintiff's home and during the visit discussed his difficulties with the plaintiff and stated he had been unable to make arrangements to build his own abattoir building; the plaintiff stated that he believed that he could build and could get such building built in sufficient time for the defendant to continue his business without interruption; the defendant became interested and the parties reached an oral understanding and agreement which provided that the plaintiff should undertake to build for the defendant at the defendant's cost, the required abattoir building, doing everything necessary to get the building built, and in consideration for his building the said building in order that the defendant might continue his abattoir business, the defendant agreed that upon completion of the building the plaintiff should have a quarter interest in the entire abattoir business, including a quarter interest in all buildings, properties, and appurtenances to the abattoir business and a quarter interest in the profits; the plaintiff then detailed the partnership relationship to be established, stating that the plaintiff should have a quarter interest, the defendant's stepson, Raymond Clark, should have a quarter interest, and the defendant would retain the remainder; the plaintiff would take care of the office management, the books and general business end of the partnership; Raymond Clark would do the selling and the defendant would do the buying for the partnership; should the plaintiff or Raymond Clark desire thereafter to withdraw from the partnership that they must give the defendant an opportunity to purchase their interests; further it was agreed that in consideration for the plaintiff's getting the building *Page 825 built the defendant would put in the business the plaintiff's share of the cost of the building; the plaintiff acted immediately upon the agreement to form a partnership the next day with efforts to obtain necessary plans; on February 16, 1946, the plaintiff alleged that he was having difficulty in obtaining architectural plans and draftsmen and the necessary engineering work but that he, the plaintiff, would proceed with the building doing all necessary architectural work himself and in general doing all that was necessary to get the building built; the defendant approved the plaintiff's plans and told him to go ahead; on February 18, 1946, the plaintiff began the actual work of clearing the site and during the months of March, April, and May, he worked diligently to get the abattoir building built; during the period of construction the plaintiff was offered employment by another local firm but refused said employment based on his contract with the defendant to form a partnership upon due and proper construction of the building; on June 1, 1946, the abattoir building was sufficiently completed to begin operation as an abattoir and that such operation was begun on June 1, 1946, and the plaintiff resumed his general office work and continued to supervise the finishing up of the construction; on June 6, 1946, the parties had an altercation after which the plaintiff mentioned his quarter interest in the business; that upon mention of his interest the defendant became violent and cursed and threatened the plaintiff and stated that the plaintiff was a liar and that the defendant had not made any agreement with the plaintiff concerning a partnership and that the plaintiff had no interest in the business and could get out; the plaintiff then alleged that he then and there attempted to discuss a proper settlement of his quarter interest in the business under the terms of the contract to form a partnership and stated that he would be forced to place the matter in the hands of his attorneys, but the defendant refused to discuss the matter with him and since that date the plaintiff has made demand upon the defendant for a proper settlement and accounting of the plaintiff's interest but the defendant has failed and refused to discuss the matter or to enter into negotiations for a settlement; the plaintiff alleged that the actual cost of the building was $60,000 and that completed and ready for use it has a value of $100,000; for several months prior to June 1, 1946, the defendant earned approximately $25,000 per month, *Page 826 and that the earnings in the new building will be in excess of that sum and that the defendant has refused plaintiff access to the records of the business and is unable to determine exactly what his share of the profits of the business would now be and demands of the defendant a full showing and disclosure of all such profits; the plaintiff alleged further, that the partnership agreement was to continue for a reasonable time and that by reason of the defendant's breach of the agreement to form a partnership the plaintiff has been deprived of his interest in the building erected and to be owned by the partnership, of his interest in the assets of the business and the value of the business and of his interest in the profits of the business for such reasonable time. The plaintiff then prays that the true assets of the business and the true value of the business and the actual profits which have been made by the business from January 1, 1946, until the present time be thoroughly inquired into and that he have an accounting of all of the assets, value, and profits of the business, during said time.
The defendant filed a general demurrer to the petition which was overruled. The defendant excepted and appealed the case to the Supreme Court. The Supreme Court in Moore v. Deal,202 Ga. 356 (43 S.E.2d 151), holding that since the petition "does not contain any prayer for injunction, receiver, or any other equitable relief," transferred the case to the Court of Appeals. The transfer of this case to this court eliminates the consideration of the demurrers directed at the petition as an equitable one involving an accounting between members of a partnership, and similar questions involved only in an equitable proceeding.
1. The demurrer based on the ground that Raymond Clark was not made a party is without merit for the reason that the action is not against him and no judgment is sought against him. The action is not based on a contract alleged to have been made with the defendant and Raymond Clark. The effect of the allegations with reference to Clark is that the defendant agreed that Clark would become a partner. The allegations as to the defendant's breach do not involve the refusal of Clark to become a partner. If he had refused it would have been a breach of the *Page 827 defendant's agreement that he would become a partner. The petition does not show that Clark was a party to the alleged agreement nor that Clark refused to join the partnership. The allegations allege a breach of the agreement before the time when Clark could have become a partner or before the question whether he would become one became a factor in the negotiations and dealings between the parties. The question of Clark's refusal to become a partner is irrelevant under the facts alleged.
2. One ground of demurrer is that the alleged contract is entire and not severable and that the petition shows non-performance on the part of the plaintiff. The petition, in effect, alleges that the plaintiff had substantially but not fully performed his part of the alleged contract, but that he was prevented from completing it by the wrongful acts of the defendant. This amounts to an anticipatory breach of the alleged contract, and the petition sufficiently shows the acceptance of the anticipatory breach to entitle the plaintiff to his full damages sustained by proof. Mendel v. Converse Co., 30 Ga. App. 549 (118 S.E. 586), and cases cited. Tender of performance is not necessary when under the facts alleged it would have been futile. Carolina Portland Cement Co. v. Columbia ImprovementCo., 3 Ga. App. 483 (60 S.E. 279); Southern UpholsteringCo., v. Lieberman, 27 Ga. App. 703 (109 S.E. 509). The action was not brought prematurely. Shell Petroleum Corp. v.Jackson, 47 Ga. App. 667 (171 S.E. 171).
3. Another ground of demurrer is that the alleged agreement sought to create an interest in real estate and that the agreement was oral and within the statute of frauds. While there was no accurate description in the contract the petition alleges facts which show that the description could be made certain by performance of the contract. Since this is not a suit for specific performance of the contract a detailed description of the property is not absolutely necessary, and not required by a general demurrer.
4. While it is true that "any contract for the sale of lands, or any interest in, or concerning them" (Code, § 20-401 (4)), must be in writing, etc., it is also true that the rule does not extend to a case "where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance." Code, § 20-402 (3). We think that the petition brings this case within the exception stated *Page 828 and that if the allegations of the petition are true it would be a fraud on the plaintiff if the defendant is not compelled to answer in damages.
It is contended by the defendant that the contract is not taken out of the statute of frauds for the reason that the plaintiff was not in possession of the property. As we understand the law, this rule 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. Code, § 37-802, applies only to actions for specific performance or damages in lieu thereof, in equity. In law cases, Code, § 20-402 (3), would seem to control. See McLeod v. Hendry, 126 Ga. 167 (54 S.E. 949);Woodall v. Williams, 176 Ga. 343 (167 S.E. 886).
5. The contention that the petition shows on its face that the contract to form a partnership was without consideration because, as contended, it alleged that the plaintiff agreed to work for the defendant during the time covered by the agreement to form a partnership at $350 per month is without merit. If the petition is construed to mean that the plaintiff received $350 per month salary during said time, he was not employed for any specific time, and if he continued to receive the $350 per month, if the agreement to form a partnership was made as alleged, and nothing was said about the salary, and if the plaintiff engaged upon the undertakings of the agreement to form the partnership, and the defendant continued to pay him the salary and acquiesce in his efforts to perform the alleged agreement to form a partnership, the law would imply that the agreement contemplated the payment of the salary as a consideration for the agreement in addition to the other terms which were expressed. The following cases cited by the defendant are not applicable. Davis Co. v. Morgan,117 Ga. 504 (43 S.E. 732, 61 L.R.A. 148, 97 Am. St. 171);Willingham Sash Door Co. v. Drew, 117 Ga. 850 (45 S.E. 237); Hall v. Edwards, 140 Ga. 765 (79 S.E. 852).
6. The contention that the petition does not allege that the plaintiff accepted the offer of the defendant is without merit. The petition alleges that the agreement was made between the parties, what the agreement was, and that the plaintiff acted on it.
7. The allegations of the petition did not fail to allege a contract *Page 829 to form a partnership for the reason, as contended, that the plaintiff contributed no money, property, services, or other thing of value, or because the agreement makes no provision for liabilities for participation in the losses of the partnership. The allegations are that upon the completion of the building the plaintiff should have a one-quarter interest in the entire abattoir business of the defendant, including a one-quarter interest in all buildings, properties and appurtenances to the abattoir business and a one-quarter interest in the profits. The plaintiff was to receive such interest in consideration of his time and effort in constructing the buildings and they were to be in effect his contribution to the partnership assets and he was in addition to render personal service to the partnership after it was formed. An agreement to form a partnership is alleged, and in the absence of an express agreement as to sharing of losses the law implies that the losses will be shared. Nellis Co. v.Green Stallworth, 36 Ga. App. 684 (137 S.E. 843), and cases cited.
No ruling is made on the question of the measure of damages as there was no ruling in the trial court on anything but the general demurrers.
The court did not err in overruling the general demurrer.
Judgment affirmed. Sutton, C. J., and Parker, J., concur.