Opinion
28995.
SUBMITTED JUNE 28, 1974.
DECIDED SEPTEMBER 4, 1974.
Specific performance. Stephens Superior Court. Before Judge Gunter.
Adams, Ellard Frankum, Stephen D. Frankum, for appellants.
Linton K. Crawford, for appellees.
George Camp, Jr. and Arvilla Camp entered into a contract to sell described real estate to James W. Warren and Betty Walls Warren. The purchasers entered into possession of such real estate under an agreement, a part of the sales contract, at a stated monthly rental. When the time arrived for the "closing" of the sales contract the purchasers refused to purchase the described real estate. Thereafter the present action was filed seeking a decree for specific performance of a contract, or in the alternative, damages for failure to perform under such contract. One of the purchasers' defenses is that the complaint, and the attached exhibit, shows on its face the contract is lacking in mutuality and is too vague, indefinite and uncertain to be enforced. Thereafter the purchasers filed a motion for judgment on the pleadings which motion was denied. A certificate of immediate review was granted and the present appeal filed. The sole enumeration of error contends that the trial court erred in denying defendants' motion for judgment on the pleadings.
1. While actions for specific performance by vendors are not often filed such actions are permitted. See Code § 37-806. "The vendor has his election between specific performance and damages... In order to entitle one to recover damages in lieu of specific performance, the complainant must prove his right to the latter remedy... Specific performance and damages are not inconsistent remedies and may be pursued in the same action." Loewus v. Eskridge Downing, 175 Ga. 456, 460 ( 165 S.E. 576). See also F C Investment Co. v. Jones, 210 Ga. 635 ( 81 S.E.2d 828).
2. The contentions of the defendants that such contract lacks mutuality is based on the following provisions of such sales contract: "This contract is contingent upon purchasers being able to obtain financing at the going interest rate for $20,000 of said purchase price. Should purchasers be unable to obtain, after diligent effort, financing in said amount, this contract shall be null and void and purchasers shall forfeit the earnest money to sellers."
Contracts which lack mutuality at the time that they are executed because some contingency named therein has not yet occurred fall into at least two categories (1) where the contingency may or may not occur solely in the discretion of one of the parties (see F C Investment Co. v. Jones, 210 Ga. 635, supra), and (2) Where the contract is contingent upon a future event but where the party is obligated to diligently seek to have such contingency take place ( Barto v. Hicks, 124 Ga. App. 472 ( 184 S.E.2d 188)).
The case sub judice falls into the second category, since it requires the diligent effort of the purchasers to obtain a loan in the amount of $20,000.
The complaint alleges that the defendants sought and obtained approval of a loan for a part of the purchase price. If the loan approved was in accordance with the defendants' request, this together with the defendants going into possession of the realty would render immaterial any indefiniteness in specifications contained in the contract relative to the loan to be obtained. Compare Blanton v. Williams, 209 Ga. 16 ( 70 S.E.2d 461).
The allegations of the complaint, when read with the contract attached thereto as an exhibit, do not show that at the time the action was filed the contract lacked mutuality. Accordingly, the judgment of the trial court refusing to grant the defendants a judgment on the pleadings was not error.
Judgment affirmed. All the Justices concur.