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COOK, Justice.
Specific performance. Banks Superior Court. Before Judge Dunahoo.
1. "A contract which is required by the statute of frauds to be in writing, and which is therefore put in writing, can not be modified by a subsequent agreement in parol." Gulf Oil Corp. v. Willcoxon, 211 Ga. 462 (2) (86 SE2d 507); Jarman v. Westbrook, 134 Ga. 19 (2) (67 SE 403); Elrod v. Camp, Flanigan & Toole, 150 Ga. 48 (2) (102 SE 357).
2. The contract which the petitioner relies on is an oral modification of a written contract to sell land, and it is not binding on the seller. Code 20-401 (4). Therefore the petitioner can not enforce the contract by specific performance, or recover damages for its breach.
4. The trial judge properly sustained the general demurrers to the petition.
James D. Sanders brought a petition against Elmer Vaughn and Jack Davis Smith, seeking specific performance of an alleged contract to sell described land, cancellation of a deed from Vaughn to Smith, temporary restraining order and permanent injunction, and other relief. He prayed for damages in the event the contract could not be specifically performed. The petition alleged the execution of a written contract wherein Vaughn agreed to sell, and the petitioner agreed to purchase, 32.6 acres, more or less, of described land, for the price of $3,000, and a later oral agreement modifying the written agreement, in which Vaughn agreed to sell, and the petitioner agreed to purchase, a tract of 60.96 acres of land, which included the 32.6 acres, for the price of $6,000. It was alleged that when the petitioner attempted to pay the purchase price, Vaughn informed him that he had already sold the property to Smith, and it was asserted that Smith had notice of the petitioner's interest and rights with respect to the property.
The trial judge sustained the general demurrers of the defendants, and the appeal is from this judgment.
Davis & Davidson, Jack S. Davidson, Robert H. Harris, for appellees.
Kimzey & Kimzey, Herbert B. Kimzey, for appellant.
Friday May 22 19:37 EDT

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