123 Ga. 707 | Ga. | 1905
(After stating the facts.) 1. The main bill of exceptions makes a single question: If the contract be treated as valid and binding on Moss, does the declaration allege a breach, giving an immediate right of action ? It has been said that “ A breach of contract may arise in any one of three ways, namely: by renunciation of liability under the contract; by failure to perform the engagement; or by doing something which renders performance impossible.” 7 Am. & Eng. Ene. L. (2d ed.) 149-150. If an agreement is made that one shall convey land to another, find if the former conveys it to a third person, and thus puts it out of his power to comply with his-contract, the latter may sue him without waiting for the contract time to elapse, and without demanding a conveyance. Bishop on Contracts, § 1430. In
In the brief for defendant in error it is said that the declaration does not set out the time when this sale occurred, nor the time when Cooley took advantage of it, so as to show whether he acted promptly; but no such point, was made in the demurrer.
2, 3. The cross-bill of exceptions assigns error in overruling the other two grounds of the demurrer. An examination of the
The fact of bringing this suit for damages can not be considered as an acceptance and 'agreement on the part of the plaintiff, if for no other reason, because it shows on its face that the defendant had abandoned the contract or violated it and rendered compliance impossible before the declaration was filed. It could not amount to the closing of a contract alleged to have already been rendered impossible of performance by the defendant, This does not conflict*'with the ruling in Black v. Maddox, 104 Ga. 157, or that in Sivell v. Hogan, 119 Ga. 167. We are of opinion, therefore, that the trial judge erred in not sustaining the demurrer ón the first and second grounds. He correctly dismissed the case, though we can not agree with him as to the reason for so doing. In Wellmaker v. Wheatley, 123 Ga. 201, there, were mutual promises to furnish a consideration.
Judgment reversed on loth hills of exceptions.