Gilleland v. Welch

34 S.E.2d 517 | Ga. | 1945

1. "While evidence is inadmissible to add to, take from, or vary a written contract, all the attendant circumstances may be proved; and if there is an ambiguity, latent or patent, it may be explained." Tolbert v. Short, 150 Ga. 413 (2) (104 S.E. 245). This does not mean, however, that a written contract, complete on its face and unambiguous, can be altered by parol, except by showing fraud, accident, or mistake by which the complaining party was induced to sign the agreement, or by which the contract failed to speak the true understanding. Slaten v. College Park Cemetery Co., 185 Ga. 27, 31 (193 S.E. 872); Holloway v. Brown, 171 Ga. 481, 483 (155 S.E. 917); Roberts v. Investors Savings Co., 154 Ga. 45 (4, 5) (113 S.E. 398); Rheney v. Anderson, 22 Ga. App. 417 (96 S.E. 217). Accordingly, a written contract in which the vendor agreed to sell a designated parcel of land for a named purchase-price, of which a specified sum was to be paid in cash, a designated loan was to be assumed, and the remainder was to be paid on a named day about three months thereafter, and the vendor agreed to "convey a good and sufficient conveyance to the said purchaser," and the written offer was accepted in writing by the vendee, constituted a valid, complete, and unambiguous agreement requiring payment by the vendee, in the manner agreed, of the full purchase-price, and his assumption of the specified loan before title should be made. In accordance with the rule above stated, such an agreement can not be varied or added to by parol in order to support an allegation that, upon the signing of the contract, the vendor directed his attorney to draw the necessary papers, and that it was verbally agreed that the papers would be signed the next day, and that the vendor would then receive from the vendee the amount then payable, and that the vendor would make to the vendee a warranty deed to the land on that day, and that the vendee would execute to the vendor a note and security deed for the balance of the purchase-price and assume in writing the previous outstanding loan.

2. Construing the contract as set forth in the previous division of the syllabus, upon the alleged anticipatory breach of the agreement by the vendor, the vendee had the option of two remedies, either of which he might resort to: (1) to accept the anticipatory breach as tendered and sue at once for damages; or (2) to treat the contract as remaining in force for the purpose for which it was made, until the time set for its performance, and then sue for specific performance. Smith v. Georgia Loan c. Banking Co., 113 Ga. 975, 977 (39 S.E. 410); Anderson v. Kirby, 125 Ga. 62, 67 (54 S.E. 197, 114 Am. St. R. 185, 5 Ann. Cas. 103); Ford v. Lawson, 133 Ga. 237 (5), 245 (65 S.E. 444); Phosphate Mining Co. v. Atlanta Oil Fertilizer Co., 20 Ga. App. 660 (93 S.E. 532). See also Roberts v. Mayer, 191 Ga. 588 (13 S.E.2d 382).

3. In the instant case, the plaintiff vendee chose not to treat the contract as ended and sue the vendor for damages on account of its breach, but to treat it as remaining in force and sue thereon for specific performance. Under the exercise of this option, the suit was premature in that the vendee failed to await the time for its performance. Crosby v. Georgia Realty Co., 138 Ga. 746 (76 S.E. 38); Ford v. Lawson, supra. The suit was also defective in failing to make a tender of the purchase-price other than the initial payment provided for by the agreement. It is the rule that, "Before equity will decree specific performance of a contract for the sale of land, at the instance of the purchaser, there must, in the absence of waiver, be an unconditional tender of the purchase-price." Martin v. Thompson, 141 Ga. 31 (2) (80 S.E. 318); Cobbs Land Co. v. Colonial Hill Co., 157 Ga. 236 (2), 254 (121 S.E. 395); Smith v. Tatum, 140 Ga. 719 (2) (79 S.E. 775); Pearson v. Courson, 129 Ga. 656 (2) (59 S.E. 907). It has been held that when a suit for specific performance is instituted at the time set for full performance under the agreement, and "the vendor by declaration or conduct proclaims that if a tender should be made its acceptance would be refused," the rule requiring a lawful tender of the purchase-money prior to the institution of the suit for specific performance will be taken as complied with where the petition shows "an offer to pay the amount due or which may be found to be due by the decree of the court, without actually producing the money and paying it into court." Miller v. Watson, 139 Ga. 29 (2), 33 (76 S.E. 585). This does not mean, however, that the prerequisite has been met as to a tender where, as here, the time set for performance of the contract has not arrived, and the petitioner makes no present offer to pay the entire purchase price, but merely states in effect that he tenders that portion of the purchase-price already due and stands ready, able and willing to pay the remainder when it shall have become due. See Martin v. Thompson, supra; Black v. Maddox, 104 Ga. 157 (2) (30 S.E. 723).

4. The trial judge did not err in dismissing on general demurrer the petition as amended.

Judgment affirmed. Bell, C. J., Duckworth, Atkinson, and Wyatt, JJ., concur.

No. 15176. JUNE 5, 1945. Gilleland sued Welch for specific performance of a contract which, so far as the questions here involved are concerned, is as follows: "The undersigned agrees to sell . . [certain described land] for the sum of $3500, to be paid as follows: $750 cash: $1650 December 1st, 1943, assume loan of $1100 due Land Bank Commissioner. . . It is understood that the seller shall convey good and sufficient conveyance to the said purchaser: . . This August 9, 1943. J. F. Welch." On August 14, 1943, Gilleland accepted in writing "the above terms as set out in said agreement," and agreed to buy said property "on the terms and conditions set out," and also agreed to pay an additional $250 as compensation to the attorney effecting the sale. The petition, as finally amended, after setting out the contract and acceptance, alleged: "That by the terms of said contract of purchase your petition[er] was to pay $1000 cash at time of purchase, $1650 on December 1st, 1943, and assume a loan of $1100 due the Land Bank Commissioner. It was understood, however, at the time that the loan to be assumed might vary somewhat from the fixed amount of $1100, but the cash payment to be made on December 1st, of $1650 was to be either increased or decreased in proportion to the amount actually due on the loan, when the correct amount could be ascertained. Your petitioner shows that said contract was signed by the parties under the following circumstances; on the 14th day of August, 1943, the day said contract was actually signed by all of the parties [they inspected the land, at the conclusion of which] petitioner agreed to and did purchase said land, and each of the parties then signed said contract right then and there. Defendant then notified his attorney, said Mr. Phillips, to draw up the necessary deeds and papers to carry into effect said sale, and it was then and there arranged and agreed that said Mr. Phillips would have the necessary papers ready by the next day, to wit, the 15th day of August, 1943; and the said parties, that is, Mr. Phillips, defendant Mr. Welch, and your petitioner, were to meet at the Bank of Norcross on that day to sign the necessary papers, and to receive from petitioner such amount of money as he was to pay at that time. Your petitioner went to said Bank of Norcross on said date, to wit, August 15th, 1943, and he met Mr. Phillips there, but defendant did not appear, he having already notified Mr. Phillips that he would not appear and would not carry out his said contract unless he was forced to do so. Your petitioner was at said time ready, willing, and able to carry out his said contract by complying with all the terms of the same, but defendant failed and refused to do so, and continued so to do up to the filing of this suit. Complying with the terms of said contract, your petitioner, prior to the filing of this suit, has tendered to defendant the amount of the payment due, to wit, the sum of $1000, which payment he refused to accept, and has stated that he was not going to comply with said contract unless he was forced to do so. Your petitioner makes said tender a continuing tender, and he has deposited said sum in the Bank of Norcross with instructions to said bank to pay the same to defendant at any time he will accept the same, and he has notified defendant that said sum of money is in said bank for his use and benefit, and that he can get the same any time he desires to obtain it. Your petitioner is also ready, able, and willing to comply with all terms of said contract, including the payment of $1650 on December 1st, 1943, and is ready and willing to comply with all the terms of said contract, including the payment of the further sum of $250 as compensation to his attorney." By amendment the petitioner further alleged that the defendant was to surrender possession of said land by January 1, 1944, and sought to recover the rents, issues, and profits thereafter. By further amendment the petitioner alleged: "That the time for consummating said sale was agreed to between the parties to be on the 15th day of August, 1943, when they met at the said Bank of Norcross; that at said time defendant's counsel, to wit, D. B. Phillips, had prepared all the papers necessary to carry into effect the terms of said contract, and there was nothing more for the parties to do except to sign them and to pay over to defendant the amount of money agreed to be paid him on that date; it being agreed between the parties that defendant would make to plaintiff a warranty deed to the land on that day, that plaintiff would execute to defendant a deed to secure the balance owing to him, together with a note for said sum, at the same time, and that he would also at that time assume in writing payment of the balance due to the Land Bank Commissioner; and everything necessary to complete said sale was to be done on said date." The trial judge sustained a general demurrer to the petition as amended, on the ground that the petition was prematurely brought.