Opinion
41392.
SUBMITTED JULY 7, 1965.
DECIDED SEPTEMBER 8, 1965.
Action on contract. Chatham Superior Court. Before Judge Harrison.
Stanley E. Harris, Jr. for plaintiff in error.
Ralph L. Crawford, contra.
"A contract for the sale of real estate which is conditioned upon the buyer procuring a loan, the terms of which are not specified, is too indefinite to be enforceable." Scarborough v. Novak, 92 Ga. App. 488 ( 88 S.E.2d 800).
SUBMITTED JULY 7, 1965 — DECIDED SEPTEMBER 8, 1965.
The seller appeals from the sustaining of a general demurrer to his complaint seeking damages for breach of an alleged contract of sale of realty. The instrument sued upon contained the following special stipulations: "The within sale is contingent upon the purchaser's ability to secure a conventional loan of $10,500 for ten years. The sale is further contingent upon final consummation of the sale on the purchaser's home at 906 West 37th Street by the State Highway Department at a sales price of $9,845."
It was alleged in the petition that the purchaser sought a loan from the Industrial Bank of Savannah, whose attorney found a defect in the title to the property. The bank informed the seller's wife of the defect and requested her to have the seller correct it.
The purchaser's home was sold pursuant to the special stipulation but she refused to obtain a loan and refused to complete the purchase of the property. The seller also alleged that "Mr. Gammon of the Bank reaffirmed that the defendant had the ability to secure the loan contemplated by the agreement if the defendant had the desire to borrow said money."
Count 1 of the petition alleged that the instrument in question was a conditional contract which became an absolute promise on the part of the purchaser to buy prior to her repudiation of the contract. Count 2 alleged that defendant ratified the contract and was estopped to declare the contract void or voidable when she relied upon its provisions to require the seller to correct a legal defect in the title, and that defendant ratified the contract and was estopped from rescinding it by her numerous reaffirmations of intent to proceed with its terms when she caused the seller to incur expenses to correct the defect and to obligate himself to move his family and to purchase another home. Both counts seek damages for breach of contract and consequential damages.
Under both counts of the petition the seller relies on the validity of the contract for a recovery. There is as a condition precedent to its enforceability, a requirement that the buyer be able to obtain a loan, the terms and conditions of which were not sufficiently specific to be enforceable. There was no provision as to interest rate, terms of repayment, etc. Stanaland v. Stephens, 78 Ga. App. 68 ( 50 S.E.2d 258). If the parties to a transaction do not create binding agreements, the courts are powerless to do it for them, or to afford a remedy for a breach. In all substantial particulars this case is similar to Scarborough v. Novak, 92 Ga. App. 488 ( 88 S.E.2d 800).
The sustaining of the general demurrer to both counts of the petition was proper.
A different result is not required by Blanton v. Williams, 209 Ga. 16 ( 70 S.E.2d 461), where the purchaser, seeking specific performance, offered to pay the entire purchase price in cash, thus effecting a waiver of the loan provision in the contract.
The seller incurred the expense of perfecting title to the property, moving his family, etc., relying upon the terms of a contract, as to which he was charged with knowledge of its invalidity, and of which there was no waiver.
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.