Opinion
18265.
SUBMITTED JUNE 9, 1953.
DECIDED JULY 13, 1953.
Specific performance. Before Judge Anderson. Richmond Superior Court. April 21, 1953.
Carl E. Sanders, Sanders, Thurmond Hester, for plaintiffs in error.
Hull, Willingham, Towill Norman, contra.
1. An option is a contract by which the owner of property agrees with another that the latter shall have the right to buy the owner's property at a fixed price, within a certain time, on agreed terms and conditions, and is subject to all rules governing other contracts. Code, § 96-101; Black v. Maddox, 104 Ga. 157 ( 30 S.E. 723); Hughes v. Holliday, 149 Ga. 147 ( 99 S.E. 301); Mattox v. West, 194 Ga. 310 ( 21 S.E.2d 428); Jones v. Smith, 206 Ga. 162 ( 56 S.E.2d 462).
2. In an option to purchase land the description must be sufficiently definite so as to describe a particular lot of land or, when the contract indicates the intention of the seller to sell a particular tract, its practical identification can be proved by extrinsic evidence. Mull v. Allen, 202 Ga. 176 ( 42 S.E.2d 360); Deich v. Reeves, 203 Ga. 596 ( 48 S.E.2d 373); Marsh v. Baird, 203 Ga. 819 ( 48 S.E.2d 529); Haygood v. Duncan, 204 Ga. 540 ( 50 S.E.2d 214).
3. On application of the foregoing rules to the present case, there was a proper obligation to convey the tract of land consisting of three acres, more or less, at a fixed price per acre — the exact acreage to be determined by an accurate survey at the time the option is exercised, bounded on two sides by definite landmarks and on the other two sides by two proposed roads, both of which were shown on a plat drawn to scale attached to and made a part of the option, such that by applying the same to the ground the tract could be definitely located even though there was a further provision that the State Highway Department and other authorities have not definitely fixed the locations of these roads and that any variation of their locations may increase or diminish the property covered in the option, which makes it become contingent upon the authorities fixing the locations of the two roads. The petition alleges that this contingency has occurred, and the exact quantity of land is no longer indefinite, since the option provides a key for determining the exact acreage in the tract.
4. When the cardinal rule of construction, which is ascertainment and effectuation of the intention of the parties, is applied here, it demands an affirmance. Both by the express provision that the land involved should extend to the projection of the named road and proposed highway as shown on the attached drawing, and by the proviso that, if the authorities locate these roads differently from the drawing, then the land involved shall extend to such roads as thus located, it becomes perfectly obvious that both intended that the optionee should buy all land between his premises and the proposed highway and extension of Olive Road, subject only to the meaning of the words "more or less," which would prevent its enforcement if the locations of the roads should leave so much land subject that it would be unreasonably in excess of the three acres.
5. For the reasons stated above, the petition alleges a cause of action for specific performance, and the court did not err in overruling the demurrer thereto.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
No. 18265. SUBMITTED JUNE 9, 1953 — DECIDED JULY 13, 1953.
The Babcock Wilcox Company, the defendant in error, brought this action for specific performance against Dan J. Jr., Jack, and Richard N Bowles, the plaintiffs in error, alleging: that the company had entered into an option contract with the above owners for the purchase of certain described land in Richmond County, consisting of three acres, more or less, which by accurate survey has been determined to be 2.4565 acres; that it has tendered the amount of the purchase price, $9826, in accordance with the terms of said contract; and that the defendants have failed and refused to accept the consideration tendered to them and refused to execute the warranty deed required by the option. Attached to the petition as Exhibit "A" is a copy of the option contract, which in substance describes the property as being bounded on the south by the northern boundary of Bowles Road; east by the property of the Georgia Florida Railroad; west by the eastern boundary of the Old Savannah Road and the southern boundary of a proposed four-lane highway, outlined on the attached print; and on the north by the northern boundary of Olive Road "as it is contemplated the same will be extended and as shown in red on said attached print." The option further reads: "The proposed extension of Olive Road has not been definitely fixed by the State Highway Department and other authorities having jurisdiction of said location, and the same is true of the proposed four-lane highway herein referred to, but this option shall cover and include all the property lying north of the northern boundary of Bowles Road, as now constituted, west of property of the Georgia Florida Railroad and south of the northern boundary of the extension of Olive Road and the southern boundary of the proposed four-lane highway, as such boundaries may ultimately be fixed by the authorities charged with the duty of locating said roads, and with any change in said location to increase or diminish the property covered hereby in accordance with the change so made." The purchase price was to be $4000 per acre, to be determined by an accurate survey of the property to be conveyed. The defendants filed a general demurrer, the substance of which is that the petition alleges no cause of action against the defendants, since the description in the contract is so vague, uncertain, and indefinite that no particular quantity of land is described; the adequacy of the consideration is not alleged; no key is contained in the description by which the described land can be located; and that Olive Road was extended or that plans for its extension have been duly adopted and fixed by the authorities, is not alleged. The petition was amended to aver that the consideration was adequate, and that the engineers of the State Highway Department of Georgia had completed plans for the proposed four-lane highway and "said plans had definitely located the line for the extension of Olive Road," and "the extension of said north boundary as located by the engineers of the State . . is only an engineering detail incorporated and established in the survey made for petitioner at the time of its exercise of its said option." A plat of the survey is also attached to the petition as an exhibit. The original demurrer was renewed and, after a hearing, was overruled. The exception here is to this judgment.