Opinion
15887.
JULY 10, 1947.
Equitable petition. Before Judge Thomas. Ware Superior Court. May 2, 1947.
Herbert W. Wilson, for plaintiff.
Wilson, Bennett, Pedrick Bennett, and John W. Bennett, for defendant.
A court of equity will require the specific performance of a contract only when its terms are clear, distinct, and definite, and then only when the contract is equitable and just. A petition for specific performance of a parol contract for the sale of land, which does not allege the consideration and the value of the land, fails to state a cause of action. In such circumstances it is impossible for the court to determine whether the contract is just or fair, or in good conscience should be performed.
No. 15887. JULY 10, 1947.
This is an equitable action brought by Joano Jenkins against Susan Evans as sole and only heir at law of Sam Evans, who died intestate on April 11, 1946, for specific performance of an oral contract alleged to have been made between Sam Evans and the plaintiff prior to his death. Briefly, the petition as amended alleged that Sam Evans, as compensation for personal services which the plaintiff had rendered him, and for reimbursement of $2000 which she had advanced him, agreed to give to the plaintiff at his death certain described lands. The plaintiff accepted the offer and relied upon it. Sam Evans did not comply with the agreement. General and special demurrers were interposed to the petition and to an amendment which was allowed subject to demurrer, and all of the grounds of demurrer to the original petition were renewed to the petition as amended. The grounds of general demurrer attacked the amended petition as failing to state a cause of action for the relief sought, and pointed out the failure of the pleader to allege the extent and value of the services rendered and the value of the lands involved. The court sustained the grounds of general demurrer, and the exception is to that judgment.
The forum in which the plaintiff elected to test the righteousness of her complaint was one exercising equitable jurisdiction. Her prayer was for specific performance of a parol contract respecting land — a purely equitable remedy. She chose to invite the court to pass upon her equitable, rather than upon her strictly legal, rights in the premises. In the brief for the plaintiff in error it is urged that the allegations of the amended petition are sufficient to state a cause of action for the specific performance of an oral contract for the sale of land, where the full purchase-price had been paid to and accepted by the vendor. Cited in support of this position are: Code, § 37-802; Murphy v. Davis, 122 Ga. 306 ( 50 S.E. 99); Coffey v. Cobb, 140 Ga. 661 ( 79 S.E. 568); Gordon v. Spellman, 145 Ga. 682 ( 89 S.E. 749, Ann. Cas. 1918A, 852); Ellis v. Reagan, 172 Ga. 181 ( 157 S.E. 478); Whitehead v. Dillard, 178 Ga. 714 ( 174 S.E. 244). We have, of course, carefully examined the cited authorities, and upon application of the principle therein announced to the allegations of the case at bar, we are not prepared to say that the petition as amended stated a cause of action for the relief sought. Assuming, but not holding, that the allegations of the petition were sufficient to show a contract for bargain and sale of land, we think that the petition was defective for lack of necessary averments to show that the contract was fair or just, or that in good conscience it should be performed. Specific performance not being a remedy which either party to the contract can demand as a matter of absolute right, it will not in any given case be granted, unless strictly equitable and just. Kirkland v. Downing, 106 Ga. 530 ( 32 S.E. 632); Pair v. Pair, 147 Ga. 754, 757 ( 95 S.E. 295); Potts v. Mathis, 149 Ga. 367 ( 100 S.E. 110); Shropshire v. Rainey, 150 Ga. 566 ( 104 S.E. 414); Huggins v. Meriweather, 177 Ga. 461 ( 170 S.E. 483); Coleman v. Woodland Hills Co., 196 Ga. 626 ( 27 S.E.2d 226). "Mere inadequacy of price . . may justify a court in refusing to decree a specific performance; so also any other fact showing the contract to be unfair, or unjust, or against good conscience." Code, § 37-805; Johns v. Nix, 196 Ga. 417 (3) ( 26 S.E.2d 526). The petition in the instant case did not give with precision the terms of the contract, or its date. In order to authorize specific performance of a contract, its terms must be clear, distinct, and definite. Studer v. Seyer, 69 Ga. 125; Shropshire v. Rainey, supra. The extent and value of the services rendered were not alleged, or the value of the lands involved. These values must be set forth in order to show that the contract which is sought to be enforced is one not unfair or unjust, or against good conscience. Potts v. Mathis, supra; Brogdon v. Hogan 189 Ga. 244, 249 ( 5 S.E.2d 657). These defects were pointed out by appropriate demurrers which were sustained. Applying to the record before us the principle repeatedly announced by this court in its former rulings, the petition seeking specific performance here did not state a cause of action for that relief, and accordingly it was not error to sustain the grounds of general demurrer and to dismiss the plaintiff's action.
Judgment affirmed. All the Justices concur.