153 Ga. 441 | Ga. | 1922
(After stating the foregoing facts). The plaintiff in error contends that the contract, which the plaintiff seeks to have specifically performed, can not be enforced, (1) because the offer by the plaintiff was not accepted by her absolutely and unequivocally, but was changed before acceptance by her, was not accepted by the defendant, and was therefore not binding on the latter; (3) because the parties to said contract never agreed to the same, at the same time and in the same sense, their minds not meeting; (3) because the offer was to be accepted by her beforé the end of April 30, 1930, and, having been changed, no acceptance thereof as altered was ever made during the'time limit fixed therein; (4) because the original contract of sale was in writing as required by the statute of frauds, and, having been changed, was never ratified in writing by the purchaser, and therefore was never a binding contract; (5) because the alleged verbal ratification thereof by the purchaser was not made in the time limit fixed by the contract; (6) because this contract, not having been ratified in writing by the purchaser, was a unilateral one, not binding alike on
The plaintiff made an offer in writing to buy from the defendant the Fraser Apartments in the city of Atlanta. This offer was signed by the plaintiff through an agent. This agent was not authorized by the plaintiff in writing to execute in her behalf this written offer. The defendant declined to accept this offer upon the terms therein set out, when presented to her by the real-estate agent who was negotiating this sale; but she agreed to accept the same, if the plaintiff would agree to pay the second loan of $4,000 on this property in January, 1921. This offer, when originally executed, contained this provision, to wit: “ Assumption of a loan due in about a year and a half, at 8%, $4,000.” The real-estate agent then struck from said provision the words “a year and a half,” and inserted in lieu thereof the words “ January, 1921.” The plaintiff then signed the written acceptance of this offer as thus changed. Thereupon the real-estate agent telephoned to the plaintiff’s son that he had made this change. The son communicated this information to his mother, who verbally confirmed and ratified this change._ Will a court of equity decline to decree specific performance of this contract, against any of the grounds of attack thereon which are - fully set out above? •
The general rule is that the memorandum need only be signed by the party against whom the contract is sought to be enforced. If a contract for the sale of lands is signed by the vendor alone, who is the party seeking to enforce the same, it will not be sufficient to bind the purchaser who has not signed the same. The same is true where the contract is signed by the buyer only, and he seeks to enforce the contract against the vendor. If a contract is duly signed by the vendor, it is not a good objection that it was not signed by the purchaser who is seeking to enforce the contract. If a contract for the sale of lands is signed by the purchaser, it may be enforced by the seller, though not signed by him; and vice versa, if the contract is signed by the vendor it may be enforced against him by the purchaser, though not signed by the latter. 25 B. C. L. 669, 670, 671, 672, §§ 305, 306, 307, 308; 1 Williston on Contracts, § 586. This court has stated the rule thus: “If a contract for the sale of land, required by the statute of frauds to be in writing, is evidenced by a writing signed by one party only, but sufficient to charge the party signing, such party would be bound to perform the contract. While in such a contract there is want of mutuality of obligation, still if the party in whose favor the writing is executed, though not bound because it is not signed by him, sees proper to waive his right to insist upon the invalidity of the contract, and as evidence of such waiver files a proceeding in a court of equity to enforce it, thus affirming in writing his willingness to be bound by the stipulations in the contract, he will by such proceeding, though previously not bound, put himself under the obligation of the contract. The contract then ceases to be unilateral; for by the act of the party who was in no way originally bound by the writing the contract becomes mutual, and the other party is thereby enabled to enforce it against him.” Perry v. Paschal, 103 Ga. 134, 137 (29 S. E. 703); Linton v. Williams, 25 Ga. 394; Talley v. So. Real Estate &c. Co., 152 Ga. 277 (109 S. E. 497). This disposes of most of the objections urged against the validity of this contract. The contract is sought to be enforced against the defendant who signed it.
In another instruction the court charged the jury that if in this transaction Dodd was acting for both parties, and had authority from the plaintiff to purchase this apartment house on the terms set out in the contract of sale as originally drawn, then Dodd as the agent of the plaintiff had authority to make the change in the contract before it was signed by the defendant, that such change made by him would bind the plaintiff, and that therefore the contract, when signed by the defendant, would be binding upon both parties. Again expressing no opinion upon the question whether the plaintiff would be bound by this change, when made by the agent on her oral authority only, if suit had been brought thereon by the defendant to charge her, still it is not erroneous as to the defendant, as a finding that the defendant is bound by this contract is demanded as a matter of law.
Complaint is made of the charge of the court upon the subject of tender. On this subject the court instructed the jury, that, if the tender was made without any condition except a request that the defendant comply with the terms of the contract of sale, the plaintiff would be entitled to a verdict for specific performance. It is alleged that this instruction was error, because the terms of
A tender, coupled with the condition that the vendor comply with the terms of sale, was not an unconditional tender. Of course tender by the vendee before suit will be excused if the vendor, by conduct or declaration, evinces an intention that a tender, if made, would be refused. Burkhalter v. Roach, supra.
The last exception is to this instruction: “ In construing this contract, it is the duty of the jury and of the court to so construe it as to bind both parties, where circumstances show their intention to be bound.” It is alleged that this is error, for the reason that it is the duty of 'the court to construe this contract, and that to instruct the jury that it was their duty to construe it so as to bind both parties misled the jury. This instruction was not entirely accurate. The construction of a contract is a question for the court, unless some matter of fact is involved, such as the reading of an obscurely written word and such like things, which a jury must solve. Code § 4265. The court meant to tell the jury that the construction which will uphold a contract is to be preferred. Civil Code, §4268 (3). But this inaccuracy would not require the grant of a new trial; as the court properly. construed this contract, and as the plaintiff, under the facts in the record, is entitled to a decree for specific performance.
A new trial is granted solely on the ground that the verdict is void for uncertainty in finding for the plaintiff a sum for rents, less expenses of operation, without fixing the amount of these expenses; but direction is given that the verdict for the plaintiff for specific performance stand, and that the next trial be confined to an accounting, as we are authorized to do under the Civil Code,
Judgment reversed m part, and affirmed in part, with direction.