39 Ga. App. 649 | Ga. Ct. App. | 1929
C. G. Aycock Realty Company brought suit in the municipal court of Atlanta against J. B. Brown to recover $300 commissions. These commissions were alleged to be due because of a contract to exchange real estate, the petition alleging that “the said J. B. Brown agreed to sell Mrs. Julia B. Russell two certain parcels of land in the city of Atlanta, Georgia, through C. G. Ay-cock Realty Company, and to pay said C. G. Aycock Realty Company a commission of $300 for making the sale.” The defendant Brown demurred to the petition, on the ground that the contract sued on was too indefinite in several particulars and was not a binding and legal contract. The trial court sustained the demurrer, and Aycock Company appealed the case to the appellate division of the municipal court, which affirmed the trial judge, and Aycock Company carried the case by certiorari to the superior court. The judge of the superior court overruled the certiorari and sustained the judgment of the lower court, and Aycock Company then brought the case to this court by bill of exceptions assigning error on the overruling of his certiorari.
The contract which is the basis of the suit is as follows: “State of Georgia, County of Eulton. Atlanta, Ga., Eeb. 7, 1928. The undersigned hereby agrees to exchange through C. G. Aycock Realty Co., agent, the following described property, to wit: all that tract or parcel of land lying and being in the City of Atlanta, Eulton County, Georgia, same being a eight unit apartment known as 264 N. Moreland Ave. as shown for the sum of thirty thousand ($30,-OO'O.OO) dollars to be paid as follows: Assumes a loan of $18,-000.00 bearing 6% reducible $500.00 in 1929 and will give my property known as two houses and lots Nos. 861 and 865 Norcross Street subject to $4000.00 loan bearing 7% interest, and will give $6000.00 payable $80.00 per month secured by loan deed on above apartment
The first ground of Brown’s demurrer is general and alleges that “no cause of action is set out;” and the second ground of demurrer alleges that the $18,000 loan referred to in the contract is not described with sufficient certainty. Obviously the contract is too ambiguous and indefinite to be capable of enforcement. Certain amendments to the petition were offered, but these were not amendments to the contract; and since the contract is the basis of the action, plaintiff’s case must stand or fall according to the validity of this contract. In the first place it is uncertain as to which piece of property Brown was to sell. The contract is in the form of a written proposition by Brown and an acceptance by Mrs. Russell. It states that “The undersigned hereby agrees to exchange . . the following described property, to wit: all that tract or parcel of land lying and being in the City of Atlanta, Fulton county, Georgia, same being a eight unit apartment know as 264 N. Moreland Ave. . .” Since the proposition was made by Brown and he was “the undersigned” first signing, the above-quoted language would indicate that he was the party selling the apartment; and yet other portions of the record show that Mrs. Russell was selling the apartment. The contract speaks of “the vendor,” but since the contract provides for an exchange of property, both parties are selling, and neither party is specifically designated as the vendor, and the contract does not name the owners of the properties in question, and the obligations alleged to be assumed are somewhat indefinite.
Again, the contract does not show how long Brown’s proposition was open for acceptance, nor does it show when Mrs. Russell accepted it; the day, year, and month of each being left blank.
Again the contract refers to certain loans neither of which is definitely described. The contract contains the following: “Assumes a loan of $18000.00 bearing 6% reducible $500.00 in 1929.” The contract does not show who assumes the loan, what company or person has the loan, what time in 1929 the $500 is reducible, when the remaining portion of .the principal is due or payable, nor when the interest is due. In the case of Trust Company of Georgia v. Neal, 161 Ga. 965 (3, 4) (132 S. E. 385) it was held that an amendment seeking to describe more definitely a loan mentioned in a sale contract was not allowable; but even though such an amendment was allowed in the instant case, it merely amended the petition and did not amend the alleged contract for sale as executed by the parties which is the basis of the action and without which the action can not stand. In the Neal case, supra, the first paragraph of the decision is in part as follows: “A paper provided: ‘The undersigned hereby agrees to purchase . . the following described property, to wit: [then follows a description of particular realty] for the sum of twenty-seven thousand, five hundred dollars ($27,500.00) to be paid as follows: Assumption of loan $9500.00, cash $7000.00, and the balance represented by [then follows a description of other realty]. [Signed] L. G. Neal. The above proposition is hereby accepted . . [Signed] D. J. Griffin.’ Held, that the language, ‘assumption of loan $9500.00,’ construed in connection with its context, is too indefinite to identify any particular loan.” And in paragraph 2 of the decision it is ruled that the language quoted above is an essential and inseparable part of the contract and should be definite and certain, and, failing to be so, the contract could not be enforced. There is a marked similarity between the contract in the Neal case and the contract in the in
In Massell Realty Co. v. Hanbury, 165 Ga. 534 (141 S. E. 653), relied upon by the plaintiff in error, the description of the loan referred to in the contract is much more definite than the description of the loan referred to in the contract in the instant case. In the Massell case the contract specified that the purchaser agrees to “assume loan of $900 now outstanding against the property purchased." In the instant case the purchaser merely “assumes a loan of $1800,” and it is not specified that the loan assumed is against the property purchased or what property it is against, and consequently it does not furnish a key of identification. In the Massell
In the instant case the indefiniteness is not only as to the loan but as to other phases of the contract. The contract for the exchange of realty consisting of a proposition and acceptance, being indefinite as to the respective owners of the properties, and the description of the properties being vague and indefinite, and no time limit for acceptance being specified, and the time of acceptance not being shown, and the contract providing for the assumption of a loan of $18000 bearing 6%, reducible $500 in 1929, and not specifying what property the loan was against, and not showing to whom the loan was due, or what time in 1929 the $500 would be payable, or when the remaining portion of the loan would be due or payable, or when the interest would be due, was too indefinite to sustain an action brought by a real-estate broker to recover commissions; and the judge of the superior court properly overruled the certiorari.
Judgment affirmed.