147 Ga. 30 | Ga. | 1917
1. The petiticm is not open to the criticism that it is multifarious because it asks for both specific performance of the contract and damages for the alleged breach thereof. The prayer was in the alternative. Where the specific performance is impossible, or the vendee declines to accept performance in part, the court may proceed to assess damages for the breach of the contract. Civil Code, § 4639.
2. Failure of a petition for specific performance of a contract to allege that the contract was in writing can not be taken advantage of by demurrer. Such failure raises no presumption that the contract exists only in parol. A party may not set out his evidence in his pleadings. Anderson v. Hilton & Dodge Lumber Co., 121 Ga. 688 (49 S. E. 725).
3. The description, in an agreement to convey, “Certain real estate of the plaintiff known as No. 48 Angier Avenue in the City of Atlanta, Fulton County, Georgia,” is not so indefinite as to render it void for uncertainty and subject to general demurrer. Bush v. Black, 142 Ga. 157 (82 S. E. 530) ; King v. Brice, 145 Ga. 65 (88 S. E. 960).
4. Nor is the description, in an agreement to convey, “A certain tract of land located in Troup County, State of Georgia,.in the 4th land district, and being one hundred and thirteen and one half acres from the east side of land lot 54, all of land lot 49, six acres in the immediate northeast corner of land lot 21, 112 acres from land lots 20 and 21; said tracts comprising approximately four hundred acres, and being the same property as described in deed recorded among Troup County records in Book 10, p. 656, and known as the- Roberts place,” so indefinite as to render it void and subject to general demurrer. It is sufficiently definite to admit parol evidence to fix its boundaries. Lyle v. Phillips, 141 Ga. 618 (81 S. E. 867) ; Clark v. Cagle, 141 Ga. 703 (2), 707 (82 S. E. 21, L. R. A. 1915A, 317) ; Johnson v. McKay, 119 Ga. 196 (45 S. E. 992, 100 Am. St. R. 166) ; Oatis v. Brown, 59 Ga. 711. See Wellmaker v. Wheatley, 123 Ga. 201 (5), 204 (51 S. E. 436); Allen v. Lindsey, 139 Ga. 648 (77 S. E. 1054).
5. An agreement to convey certain described real estate to a vendee in con
7. The court did not err in overruling the general demurrer.
Judgment affirmed.