Opinion
17974.
SUBMITTED SEPTEMBER 8, 1952.
DECIDED OCTOBER 14, 1952.
Cancellation. Before Judge West. Clarke Superior Court. June 13, 1952.
Milner Stephens, for plaintiff in error.
Erwin, Nix, Birchmore Epting, contra.
1. A proposal to contract, which is not based upon any consideration, may be rejected by either party at any time prior to the execution of a valid contract.
2. Equity will not decree the specific performance of a contract where the terms thereof are not definite and certain.
No. 17974. SUBMITTED SEPTEMBER 8, 1952 — DECIDED OCTOBER 14, 1952.
Charles L. Trippi filed a petition against A. W. Harris and Texas Company, a Delaware corporation. In so far as material to the rulings here made, it was alleged: The plaintiff is the owner of a described tract of land. At the time he was negotiating for the purchase of the property, an instrument was executed by the plaintiff and the defendant, A. W. Harris, a copy of which is attached as Exhibit A. The instrument has been recorded. The defendant, A. W. Harris, is now contending that the instrument constitutes a binding obligation on the plaintiff to erect a one-story filling station. The instrument is not mutually binding, and the plaintiff is not bound to erect improvements, or to lease the premises to the defendant. He prayed that the instrument be decreed to be of no legal effect, and that it be declared to be null, void, and unenforceable. The instrument attached as Exhibit A (omitting the heading and execution thereof) is as follows:
"This agreement entered into this 7th day of January, 1952, between Charles L. Trippi and A. W. Harris, both of Athens, Clarke County, Georgia:
"1. In the event Charles L. Trippi purchases and acquired title to property located on the Northwest corner of Prince Avenue and Barber Street at a price of $15,500.00 and erects on said lot a one story filling station building and grades lot to sidewalk level 169 feet on Prince Avenue and a depth of 100 feet on Barber Street, A. W. Harris agrees to lease from C. L. Trippi the lot and improvements for a period of ten years with an option to renew the lease for an additional five years at the expiration of the ten year lease and if he exercises his option for the first five years he is to be given an additional five year option, being a ten year straight lease with two five year options at the same rental.
"2. Rent is to be based on 10% of the value of the lot $15,500.00 plus the cost of the grading plus the cost of the improvements, both grading and improvements rents to be based on 10% per annum.
"3. In the event the Texas Company, Atlanta Division, decides that they want the lease agreement to be between them and C. L. Trippi, A. W. Harris agrees to assign or transfer his interest in this lease agreement to the Texas Company.
"4. Improvements on the within described property shall be erected according to plans, specifications and requirements or [sic] the Texas Company.
"5. Lease agreement is to be the Texas Company's Form G 77 A."
Texas Company filed an answer, in which it alleged that it had no interest in the instrument (Exhibit A), and that it was not a party to any agreement between the plaintiff and the defendant Harris.
Harris filed an answer, in which he alleged that Exhibit A was prepared by persons who were not lawyers, and is only a part of the agreement between the plaintiff and the defendant; that the instrument, when construed in connection with all the surrounding facts and circumstances, constitutes a binding agreement between the plaintiff and the defendant. He prayed that the plaintiff be required to specifically perform the agreement.
By amendment to his answer the defendant alleged: On the date of the execution of the instrument, the parties entered into an oral agreement wherein the plaintiff would buy the real estate described, erect a filling station, and lease it to the defendant, the proposed lease to be in accordance with Texas Company's Form G 77 A. Through mutual mistake and oversight, the plaintiff and the defendant failed to set forth the true intent of the parties, and the instrument does not state the oral agreement on which it was founded. In order for complete justice to be done, it is necessary that the instrument set forth in the petition be reformed to comply with the original oral agreement.
The general demurrers of the plaintiff to the answer were sustained, and the document was held by the trial court to be null, void, and unenforceable. The exception is to the judgment sustaining the demurrers and decreeing cancellation of the recorded instrument.
1. The instrument attached to the plaintiff's petition is nothing more than a proposal by the defendant to lease from the plaintiff a filling station, if and when a station might be constructed by the plaintiff. The trial judge quite properly found that the instrument was without consideration, and being without consideration, although continuing in character as to time, the plaintiff had the right to reject the proposal by the defendant and to decline to proceed with the construction of a filling station. Prior v. Hilton Dodge Lumber Co., 141 Ga. 117 ( 80 S.E. 559); Phinizy v. Bush, 129 Ga. 749; Hackett v. Ladson, 152 Ga. 483 ( 110 S.E. 232); Tobey v. Seaboard c. Construction Co., 169 Ga. 104, 105 (2) ( 149 S.E. 914); Rivers v. Key, 190 Ga. 852 ( 11 S.E.2d 14); State Highway Dept. v. MacDougald Construction Co., 54 Ga. App. 310 ( 187 S.E. 734).
2. The defendant's amendment, in which he relies upon a purported oral agreement, can not be sustained. The amendment alleges that the proposed lease would be in accordance with "Texas Company's Form G 77 A," and a copy of this form is attached to the amendment.
A contract upon which specific performance is sought must be certain, definite, and clear, and so precise in its terms that neither party can reasonably misunderstand it. Studer v. Seyer, 69 Ga. 125; Hill v. Hill, 149 Ga. 50, 52 ( 99 S.E. 31); Adcock v. Shaw, 167 Ga. 710 ( 146 S.E. 478); Blumenfeld v. Citizens Bank Trust Co., 168 Ga. 322 ( 147 S.E. 579).
Even the most casual consideration of the form of the lease, which the defendant alleges was to be executed at some future time, shows a wholly incomplete agreement, and one wherein specific performance could not be decreed. Much of the purported lease agreement is in blank, and the items would have to be agreed upon by the parties at some future time, or be supplied by the court. In paragraph 9 (b) there are nine items that would have to be agreed upon by the parties, and in subparagraph (c) of the same paragraph there are sixteen items that would have to be agreed upon. For the court to decree specific performance of the purported lease agreement would be for the court to make a contract between the parties. This a court of equity will not do.
The trial court properly sustained the demurrers to the answer as amended.
Judgment affirmed. All the Justices concur.