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Harrell v. Stovall

Supreme Court of Georgia
May 28, 1974
206 S.E.2d 493 (Ga. 1974)

Summary

holding that where contract did not specify time for payment, payment for acreage adjustment had to be made in cash at closing rather than in form of installment payments

Summary of this case from Gwinnett County v. Old Peachtree Partners, LLC

Opinion

28832.

ARGUED MAY 14, 1974.

DECIDED MAY 28, 1974. REHEARING DENIED JUNE 12, 1974.

Specific performance. Cobb Superior Court. Before Judge Ravan.

Flournoy Still, Charles A. Evans, for appellant.

Reed Friedewald, R. M. Reed, James Friedewald, for appellee.


This is an action for specific performance of a written contract to sell a described tract of land located in Cobb County, Georgia. The seller appealed from judgments of the trial court overruling a motion for judgment on the pleadings and granting of summary judgment to the purchaser.

The contract called for 25.2 acres of land to be paid for with a definite down payment and described instalment payments. It then called for a survey of the tract and the exact purchase price to be $9,000 per acre to the nearest one thousandth acre as shown by the survey. The survey was made and showed the tract of land to contain 25.404 acres.

The complaint alleged a continuing tender and a refusal of the seller to accept any tender as well as an absolute refusal of the seller to close the contract.

1. Equity does not require a vain and useless thing. Finney v. Blalock, 206 Ga. 655, 660 ( 58 S.E.2d 429). Thus the allegation of the complaint which showed the absolute refusal on the part of the seller to close was sufficient to satisfy any requirement of tender by the purchaser.

2. The contract contemplated a possible discrepancy in the amount of land to be conveyed and provided for an adjustment in the total purchase price to cover such contingency down to one thousandth of an acre. The purchase price stated for the assumed amount of acreage in the tract was $9,000 per acre and the adjustment, if any, required in the purchase price as a result of the survey provided for the same purchase price to wit: $9,000 per acre. There could be no misunderstanding with regard to the total purchase price.

As to the contracts where no mention is made as to the time of payment the legal construction is that it is payable presently. See Hawkins v. Studdard, 132 Ga. 265, 271 ( 63 S.E. 852, 131 ASR 190). Under the contract here the difference in the acreage would have to be paid in cash and not made a part of the instalment payments.

2. The deposition of the seller was taken for use on the plaintiff's motion for summary judgment. No question as to the value of the land was raised and the defendant testified that the reason he wouldn't close was, because of tax problems, he was getting too much down payment. This testimony removed any question as to inadequacy of consideration and presents a stronger case than did Deal v. Dickson, 231 Ga. 366 ( 202 S.E.2d 41).

The contract was definite and the trial court did not err in overruling the defendant's motion for a judgment on the pleadings and in granting the plaintiff's motion for summary judgment.

Judgment affirmed. All the Justices concur, except Ingram, J., who is disqualified.


ARGUED MAY 14, 1974 — DECIDED MAY 28, 1974 — REHEARING DENIED JUNE 12, 1974.


Summaries of

Harrell v. Stovall

Supreme Court of Georgia
May 28, 1974
206 S.E.2d 493 (Ga. 1974)

holding that where contract did not specify time for payment, payment for acreage adjustment had to be made in cash at closing rather than in form of installment payments

Summary of this case from Gwinnett County v. Old Peachtree Partners, LLC

holding that where contract did not specify time for payment, payment for acreage adjustment had to be made in cash at closing rather than in form of installment payments

Summary of this case from Gwinnett County v. Old Peachtree Partners, LLC
Case details for

Harrell v. Stovall

Case Details

Full title:HARRELL v. STOVALL

Court:Supreme Court of Georgia

Date published: May 28, 1974

Citations

206 S.E.2d 493 (Ga. 1974)
206 S.E.2d 493

Citing Cases

Gwinnett County v. Old Peachtree Partners, LLC

See 2 Daniel F. Hinkel, Pindar's Ga. Real Estate Law and Procedure, § 18:32 (7th ed. 2013). See also Harrell…

Gwinnett County v. Old Peachtree Partners, LLC

See 2 Daniel F. Hinkel, Pindar's Ga. Real Estate Law and Procedure, § 18:32 (7th ed. 2013). See also Harrell…