1. Demurrers filed prior to the date of the Civil Practice Act will on appeal be adjudged as though they were motions filed in accordance with present practice.

2. The petition seeking damages for breach of an oral contract including the purchase and resale of land set out a claim as against the defense that it was barred by the Statute of Frauds where the petition alleged full performance on the part of the plaintiffs and a substantial performance on the part of the defendant.

3. Where the plaintiff declares on an express contract which, under one permissible inference from the evidence, is unenforceable except as certain acts which have already been completed, he is not thereby precluded from recovering on a quantum merit basis where evidence authorizing this result is admitted without objection.

ARGUED MARCH 9, 1972 — DECIDED MARCH 17, 1972.

Frost Hill, a partnership, sued Thompson for damages for breach of contract. The petition alleges that the parties entered into an oral agreement containing the following terms: Thompson was to purchase a designated tract of land and deed half of it to the plaintiffs for a filling station, placing his own business on the half retained by him; plaintiffs were to construct a service station on their half at a total price of between $45,000 and $50,000; if the total price exceeded $45,000 defendant would pay the excess by a four-year note; upon completion of the service station Thompson would operate it and would enter into a lease purchase agreement with plaintiffs for an amount equal to the mortgage; Thompson would use plaintiffs' products and pay a monthly rental in a sum equal to the monthly mortgage payment, said sum to apply against the purchase agreement; upon payment in full of the note and mortgage the lot would be deeded back to the defendant, and the payments made would constitute payment in full of that property plus the lot remaining in his name. The total cost of construction was in fact $49,766.38. Thompson never executed a note for the excess, never made rent or mortgage payments, operated the service station for approximately 20 months and then abandoned the property, causing it to lie vacant for three months before a new operator was procured. Defendant then breached the contract. Damages are alleged as follows: $2,250 rent (equal to mortgage payments) plus interest during the period of defendant's operation of the station: $874.47 for mortgage payments while the station was abandoned; $500 for a house located on plaintiff's lot and appropriated by defendant and moved to his lot; $6,000 as the value of defendant's lot; $680 as rent and interest on the house and lot. Another item of $4,581.92 specified as rent is unclear and may be intended to be alternative to the mortgage payments.

The petition was filed prior to the Civil Practice Act. General and special demurrers were overruled and upon trial a verdict of $3,500 was found in favor of the plaintiffs. From these rulings the defendant appeals.

DEEN, Judge.

1. Demurrers filed prior to the effective date of the Civil Practice Act will be passed on as motions to dismiss for failure to state a claim. Banks v. Champion, 118 Ga. App. 79 (1) ( 162 S.E.2d 824); Dean v. Gainesville Stone Co., 118 Ga. App. 142 (5) ( 162 S.E.2d 858). The petition will not be dismissed unless the averments disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. Harper v. DeFreitas, 117 Ga. App. 236 (1) ( 160 S.E.2d 260). Demurrers 1, 2 and 4 are therefore equivalent to motions to dismiss under Code Ann. § 81A-112 (b) (6), and the remaining special demurrers go to matters of form no longer necessary under present pleading requirements.

2. Was there a performance of the contract as described by the plaintiffs' petition sufficient to remove it from the plea of the Statute of Frauds under Code § 20-402 (3)? The partnership sets up as its sole obligations: (1) accepting a deed to one half the land purchased by Thompson; (2) funding and building a service station thereon; (3) turning it over to the defendant to operate; (4) deeding it back after full performance. All of these things except the last were done. The defendant's obligations were to (1) make the initial purchase: (2) deed the corner lot to the plaintiffs; (3) move his business on to the lot retained by him; (4) operate the plaintiff's business: (5) pay the mortgage notes as they came due; (6) execute and pay a note on any construction balance over $45,000. The first three operations were performed; the fifth and sixth were not. There was accordingly almost full compliance by the plaintiffs and a substantial compliance by the defendant. The petition stated a claim and the contract was not within the Statute of Frauds. Hudson v. Carmichael, 181 Ga. 317 (4) ( 181 S.E. 853); Ambrose v. Ambrose, 94 Ga. 655 ( 19 S.E. 980); Baxley Hardware Co. v. Morris, 165 Ga. 359 ( 140 S.E. 869); Armstrong v. Reynolds, 36 Ga. App. 594 (1) ( 137 S.E. 637).

3. The evidence showed without conflict that the plaintiffs had a franchise with Phillips 66 and that the filling station was funded by money supplied by that corporation; that the defendant did purchase the land for $13,500 supplied by the plaintiffs from this source and that he retained for his own use approximately 40% less a small triangular easement, deeding the larger corner lot to the plaintiffs. The testimony of the latter generally substantiated the facts alleged in the petition. Thompson, however, testified that the house was given to him because it had to be moved; that there was never any discussion of his paying a note in excess of $45,000; that there were oral negotiations concerning the drawing up of a contract under which Thompson would run the completed service station with Phillips 66 products procured by the plaintiffs, pay off the mortgage and receive a deed back when the mortgage was paid, but that no contract was ever executed because of confusion over the cost of the building which the plaintiffs were in the process of erecting. He also testified that the plaintiffs themselves opened the station in his absence; that he did attempt to run it for a short period of time but failed to generate business, and that Hill then agreed he "might as well take it back over," which he did; that until suit was filed the plaintiffs had never asked him $6,000 for the lot he retained but that when he informed them he was not going to purchase or run the filling station Hill wanted to know how much he was going to pay for that lot and stated it should be worth $2,000 or $3,000.

Thus, the testimony as a whole would support a jury inference that there was a consummated oral contract for the purchase and division of the land which was intended to lead into a written contract for the defendant's repurchase of the filling station after the buildings were erected; that the latter contract never developed into a binding agreement because of the excess of costs over the estimates and Thompson's inability to run the station, and that there was no meeting of the minds as to the proportionate values of the respective parcels of land. The jury might therefore have found the defendant's only liability to be the smaller lot retained by him, and have placed a value on it of $3,500, which was within the range of the evidence. The rule that one may not recover on quantum merit, if the evidence so warrants, in a contract action no longer obtains. Code Ann. § 81A-115 (b) provides: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment ... may be made ... even after judgment; but failure so to amend does not affect the result of the trial of these issues." Under the identical Federal counterpart to this rule it has frequently been held that amendments may be filed to conform to the evidence even though they technically change the theory of the cause of action, and that in the absence of amendment, where no objection is interposed, the pleading will be considered to have been amended so as to uphold the verdict. Montgomery v. Moreland, 205 F.2d 865; Nester v. Western Union Tel. Co., 25 F. Supp. 478; Matarese v. Moore-McCormack Lines, Inc., 158 F.2d 631; Fireside Marshmallow Co. v. Frank Quinlan Construction Co., 199 F.2d 511. Hamill v. Maryland Cas. Co., 209 F.2d 338, 340 held specifically that the plaintiff may recover upon any theory legally sustainable under the established facts, regardless of the demand in the pleadings.

The plaintiffs' failure to prove that the oral contract on which they declared included anything more than procurement of the land and an agreement to work toward an agreement under which the defendant would repurchase the corner lot with improvements, at an unspecified price, does not preclude them from recovering a reasonable value for land paid for by them and retained by the defendant.

Judgment affirmed. Jordan, P. J., and Clark, J., concur.