I. We think the Court erred in non-suiting the plaintiffs. There certainly was evidence sufficient to make out a prima facie case of a contract between the company and the plaintiffs; and where this is the case, a non-suit should not be granted; Mitchell vs. Rome Railroad Company, 17 Ga. Rep., 574; Mounce vs. Byars, 11 Ga. Rep., 192-3. The plaintiffs had made out by proof such a case as entitled them to go to the jury. There Avas some evidence to sustain the allegations in their declaration. There may be many difficulties in the Avay of their recovery, but these are matters not for the decision of the Court, but of the jury.
2. The Court decided that this contract Avas void because not in writing. To this, the reply is, that the evidence tended to prove a part performance of the parol contract on the part *31„of the plaintiffs. 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 performance," (Rev. Code, Sec. 1941, par. 3) the statute does not apply. Whether there was such part performance as contemplated by this paragraph or not, is a question for the determination of the jury. ■ The plaintiff made large preparations for getting and delivering timber, whether it was in part performance of the alleged parol contract or not, may be determined hereafter. The evidence was competent, and as it tended to show that the part performance was made in reference to the contract, the Court should have allowed the case to go to the j ury, and should have instructed them as to the legal principles applicable to the facts proved. When the whole case shall been fully heard, the Court will be better prepared to decide upon the merits of the controversy, and do justice to both parties.
Judgment reversed.