Hicks
v.
Stucki

Court of Appeals of GeorgiaApr 29, 1964
109 Ga. App. 723 (Ga. Ct. App. 1964)
109 Ga. App. 723137 S.E.2d 399

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40478.

DECIDED APRIL 29, 1964. REHEARING DENIED MAY 18, 1964.

Action to recover earnest money. DeKalb Civil and Criminal Court. Before Judge Morgan.

Haas, Dunaway, Shelfer Haas, George A. Haas, Hugh F. Newberry, for plaintiff in error.

Walter E. Baker, Jr., contra.


1. A purported contract for the sale and purchase of described real estate which provides that the purchase price shall be $11,000 "to be paid as follows: $6,000.00 cash, $5,000.00 first mortgage or second mortgage loan or loans, bearing interest not to exceed 7% payable for a period of twenty years at $38.77 per month beginning 30 days from date of closing," is too vague, indefinite and uncertain to be enforceable. This language furnishes no key from which it may be ascertained on what property it was contemplated by the parties that such loan or loans were to be obtained or what property was to be mortgaged, from whom the loan or loans were to be obtained, and to whom the mortgage or mortgages were to be given, and whether such mortgage was to be a first or second mortgage, and if two mortgages were to be given and two loans obtained, what were the contemplated amounts of each of such mortgages and loans, and if two loans were to be obtained, what amounts were to be paid on each, and finally, it is not stated in the instrument whether the stipulated amount of monthly payments includes or does not include interest on the loan or loans. Under these circumstances the contract was not an enforceable one. Crawford v. Williford. 145 Ga. 550 ( 89 S.E. 488); Trust Co. of Ga. v. Neal, 161 Ga. 965 ( 132 S.E. 385); Stanaland v. Stephens, 78 Ga. App. 68 (2) ( 50 S.E.2d 258); Williams v. Gottlieb, 90 Ga. App. 438 ( 83 S.E.2d 245); Cole v. Cutler, 96 Ga. App. 891 ( 102 S.E.2d 82); Morgan v. Hemphill, 98 Ga. App. 732 ( 106 S.E.2d 865); Fleming v. Doran, 98 Ga. App. 837 ( 107 S.E.2d 332).

2. The trial court erred in sustaining the general demurrer to the plaintiff's petition which sought to recover $1,100 earnest money paid by the petitioner to the defendant pursuant to the aforesaid contract, said petition showing that the contract had not been consummated and that the defendant had failed and refused to return the earnest money on demand of the plaintiff.

Judgment reversed. Felton, C. J., and Pannell, J., concur.

DECIDED APRIL 29, 1964 — REHEARING DENIED MAY 18, 1964.