Opinion
17907.
SUBMITTED JUNE 9, 1952.
DECIDED JULY 14, 1952.
Specific performance. Before Judge Pratt. Jackson Superior Court. January 4, 1952.
Wheeler, Robinson Thurmond, Davis Davidson, Quillian, Quillian Thomas and Joseph D. Quillian, for plaintiffs in error.
Early C. Stark and George W. Westmoreland, contra.
The judgment of the court below overruling the general demurrer to the petition was error.
No. 17907. SUBMITTED JUNE 9, 1952 — DECIDED JULY 14, 1952.
J. W. Healan brought suit against W. A. Healan and Dean S. Lott, seeking the specific performance of an oral contract for the sale of land, and the cancellation of a security deed to the land which had been executed to Dean S. Lott. The petition as amended alleged substantially as follows: that on April 19, 1949, defendant sold to plaintiff certain described property; that plaintiff was to pay defendant Healan $5000 for the said property; that, as a binder, plaintiff paid defendant Healan $100 on the day of the purchase; that, after certain indebtedness of defendant to plaintiff and his wife and certain endorsements of notes which plaintiff had signed for the defendant, plaintiff was to pay the balance when the amount of the indebtedness could be determined; that plaintiff made stated payments to W. A. Healan on the property; that plaintiff paid or obligated himself to pay at the request of W. A. Healan certain stated notes; that to date plaintiff has paid $2313.13 towards the purchase price of the farm and stands ready to pay the balance due when deeds are fixed and title to the land is clear.
The petition further alleged that, some ten days after plaintiff purchased the property from W. A. Healan, defendant Dean S. Lott came to plaintiff and asked him to pay to defendant Lott "$100 and some few dollars," which plaintiff refused to do; that, with full knowledge of said purchase by plaintiff, defendant Lott had recorded a security deed to the property purchased by the plaintiff to secure a note of $1500, "well knowing that plaintiff had purchased the land and that W. A. Healan had no right to sell said land again, but in collusion with W. A. Healan to beat and defraud plaintiff in getting a clear title to the lands from W. A. Healan."
The petition then alleged that defendant Healan failed and refused to abide by the sale or to reimburse plaintiff for the money spent and the debts due him, and now says that he will not execute the deed to said property as agreed; that plaintiff has requested said defendant to get the exact amount of the loans that were outstanding against the farm at the time of the purchase, and that he would pay any balance due up to the purchase price of $5000, and defendant refused to do this and refused to accept any more of the purchase money; that plaintiff stands ready to pay to the proper parties all of the balance of said purchase money he is due to pay for the property; and that plaintiff has no adequate remedy at law.
The prayers of the petition were: that defendant W. A. Healan be required to render to plaintiff the amount of the indebtedness due at the time of the purchase so that plaintiff can pay the balance due, if any he is due; that defendant be required to execute to plaintiff a deed to the lands in question; and that the security deed of Dean S. Lott be canceled; and that plaintiff be granted other equitable relief.
Plaintiff amended his petition by adding an allegation to the effect that W. A. Healan was insolvent and unable to respond in damages.
Plaintiff further amended, alleging that the purchase price of $5000 was a fair market value of the land at the time of the purchase; that defendant Healan informed plaintiff that the Federal Land Bank loan was approximately $2600 at the time of the purchase, which was to be paid by plaintiff as a part of the purchase money. This amendment also set out more definitely the amount of the indebtedness due from the said defendant to the said plaintiff and his wife and certain other indebtedness of W. A. Healan, which it is alleged that plaintiff was to pay as a part of the purchase money.
Plaintiff then again amended his petition by striking and changing certain sums previously alleged to be due and paid and setting up in further detail the indebtedness of W. A. Healan which had been paid by plaintiff as part of the purchase price of the land in question.
Later, plaintiff again amended, alleging that, as a part of the purchase price of the property described, plaintiff agreed to pay off the first mortgage lien held by the Federal Land Bank of Columbia, South Carolina, or such other Federal agency as holds the lien and has the right to recover said payment; but, as of this date, plaintiff has been unable to ascertain the exact amount due, and defendant W. A. Healan has refused repeated demands to reveal to plaintiff the sums due; that plaintiff stands ready to pay any sums due the Federal Land Bank of Columbia, South Carolina, or other Federal agency under the lien against the land; that plaintiff stands ready to pay over to said defendant any balance due him under the agreement of sale.
Defendant W. A. Healan filed general and special demurrers to the original petition, the amendments to the petition, and to the petition as finally amended. All demurrers were overruled, and the defendant excepted pendente lite.
Both defendants filed answers to the petition as amended, denying all of the material allegations and setting out their defenses. Defendant Healan prayed for a money judgment by way of cross-action.
The case proceeded to trial before a jury, and they found in favor of the plaintiff against both defendants. Both defendants filed their motions for new trial on the usual general grounds, and amended by adding numerous special grounds. The motion for new trial was overruled as to all of its grounds. The exceptions here are on the exceptions pendente lite and on the judgment denying a new trial.
1. The first question presented is, whether or not the judgment of the court below overruling the general demurrer to the petition was error. "We recognize the rule that whether the contract be such as is provable by parol or is required by the statute of frauds to be in writing, it must be certain and unequivocal in all its essential terms, either within itself or by reference to some other agreement or matter, or it can not be specifically enforced. . . It is, however, established that the certainty required must extend to all the particulars essential to the enforcement of the contract. It is essential that the contract be certain and definite as to the promise or engagement, as to the parties to whom the conveyance is to be made, as to the description of the subject matter, as to the consideration of the contract, and as to the time and mode of performance." Dowling v. Doyle, 149 Ga. 727 ( 102 S.E. 27). See also Sturdivant v. Walker, 202 Ga. 585 ( 43 S.E.2d 527); Odum v. Downing Co., 177 Ga. 787 ( 171 S.E. 294); Saye v. Adams Loan Investment Co., 173 Ga. 24 ( 159 S.E. 575); and cases cited.
Construing the allegations of the petition most strongly against the pleader, the alleged agreement was that the plaintiff agreed to buy and the defendant agreed to sell a described piece of property for $5000. The agreement was oral, and the plaintiff has paid the said defendant alleged sums as part performance. This much of the alleged agreement is definite and certain. However, no definite time or mode of performance is alleged, nor is there anything alleged from which a definite time and mode of performance can be ascertained. The plaintiff in his original petition and in the various amendments thereto seeks to correct this obvious weakness in his petition. Nowhere in his petition, however, does he allege when the balance is to be paid, how it is to be paid, or to whom it is to be paid.
The plaintiff alleges a series of obligations and notes owed by the defendant which the plaintiff alleges he has agreed to pay as a part of the purchase price. The sum of some of these notes is alleged to be a definite amount; as to at least one obligation, it is alleged that the amount is unknown to the plaintiff. As to some obligations, it is alleged that it was agreed that they were to be deducted from the purchase price; and, as to others, it is not alleged whether or not they were to be deducted. In so far as the mortgage held by the Federal Land Bank of Columbia, South Carolina, or such other Federal agency as may have "the right to recover the same," is concerned, the allegations are conflicting. Plaintiff alleges in one place that the amount due is about $2600; at another, that the amount is $2678.32; and at another, that he does not know how much is due or to whom it is due.
The above particulars are only examples of the indefinite nature of the contract alleged and sought to be specifically performed. While there are other particulars in which the contract is equally indefinite, the above is sufficient to show that the contract alleged in the petition in the instant case is not so definite and certain in all its essential terms as to be entitled to specific performance. See, in this connection, Sturdivant v. Walker, supra; Odum v. Downing, supra; Saye v. Adams Loan Investment Company, supra; Crawford v. Williford, 145 Ga. 550 ( 89 S.E. 488); Muller v. Cooper, 165 Ga. 439 ( 141 S.E. 300); Erwin v. Hardin, 187 Ga. 275 ( 200 S.E. 159); Trust Company of Georgia v. Neal, 161 Ga. 965 ( 132 S.E. 385).
It follows, the judgment of the court below overruling the general demurrer to the petition was error.
2. Since the general demurrer should have been sustained, all that happened thereafter was nugatory.
Judgment reversed. All the Justices concur, except Atkinson, P.J., not participating.