August 25, 1927. *Page 59
The opinion of the Court was delivered by This is an action for damages as a result of the alleged breach of a verbal contract by which the defendant obligated himself to sell to the plaintiff a half interest in the capital stock of the Conway Bargain House, a corporation in which the defendant and his wife owned the entire capital stock.
The testimony is exceedingly vague and unsatisfactory, but the jury has found a verdict in favor of the plaintiff; the presiding Judge has refused a new trial, and we cannot say that the verdict is wholly without evidentiary basis.
The main contention of the defendant-appellant is that his motion for a directed verdict should have been granted upon the ground that the contract was non-enforceable under the statute of frauds. There is evidence tending to establish the verbal agreement alleged, and that it was partially performed by the plaintiff, so as to relieve the plaintiff from the bar of the statute. The motion was therefore properly refused.
See Gadsden v. Lance, McMul. Eq., 87; 37 Am. Dec., 548;Hightower v. Ansley, 126 Ga. 8; 54 S.E., 939; 7 Ann. Cas., 927; Vol. 3, Code 1922, § 5517, and cases cited.
The second exception is without merit. The Circuit Judge was entirely within his prerogative in charging the jury: "Now as to a valid contract, what is a valid contract? It must be about a lawful subject, and I charge you this is a lawful subject." His charge amply presented to the jury the contested question as to the existence of a contract; his observation above quoted was entirely correct and could not have been taken by the jury as an assumption of the contention of the plaintiff.
The third exception complains that the Circuit Judge submitted to the jury a question of law, the decision of the definiteness of the alleged contract. Taking the portion of the charge excepted to, in the connection in which it was used, it will appear that the issue intended for *Page 60 the jury was the existence of the contract. (The reporter will incorporate in the report of the case the charge of the Circuit Judge in this connection, beginning at folio 365 of the transcript and ending with the word "that," in the middle of folio 367.)
The fourth exception, which will be reported, is manifestly without merit.
The fifth exception is baseless, as the verdict was for actual and not punitive damages.
The judgment of this Court is the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.