Ellis v. SAVANNAH BANK & TRUST COMPANY OF SAVANNAH , 234 Ga. 355 ( 1975 )

234 Ga. 355 (1975) 216 S.E.2d 109

ELLIS
v.
SAVANNAH BANK & TRUST COMPANY OF SAVANNAH.

29862.

Supreme Court of Georgia.

Submitted April 21, 1975. Decided May 6, 1975.

R. B. Donaldson, Jr., for appellant.

John M. Hewson, III, Olaf North Otto, for appellee.

JORDAN, Justice.

James Ellis filed a complaint in the Chatham County Superior Court against the Savannah Bank & Trust Company, seeking specific performance of an alleged contract to sell certain real property. The defendant-bank filed its answer and a motion for judgment on the pleadings, contending that the alleged contract was oral and therefore violative of the Statute of Frauds. On December 27, 1974, the trial court granted the bank's motion and Ellis now appeals the decision to this court.

Appellant contends on appeal that since he did not admit in his pleadings that the contract was oral, an issue of fact was joined that requires an evidentiary hearing for determination and it was therefore error for the trial court to grant a motion for judgment on the pleadings.

We agree with appellant's position and reverse the judgment of the trial court.

Appellant's complaint never admits nor pleads that the contract was oral, and therefore there must be some type of evidentiary hearing to determine the fact question presented. The appellee could have required the alleged contract to be produced, but chose not to follow that course of action and absent any showing that there is not a written contract the appellant's pleadings taken in their most favorable light present a question of fact.

Judgment reversed. All the Justices concur.