28 Ga. App. 410 | Ga. Ct. App. | 1922
Goss bought the land involved in this case from Finger and paid a portion of the purchase-price in cash and gave his promissory notes for the remainder. Finger gave Goss a bond for title. The bond for title contained no provision for the forfeiture of the money paid, nor was time made the essence of the contract. Possession of the land sold was refused to the purchaser. Goss thereafter returned the bond for title to Finger, accompanied by a letter demanding the return of the purchase-money paid and the promissory notes given. No reply was ever made to this letter. Finger afterwards deeded the land to a third person as security for a debt. Goss then brought this action against Finger for the money had and received.
Forfeitures are not favored by the law. Civil Code (1910), § 3717. No provision for a forfeiture of the money paid was in Finger’s bond for title to Goss, nor was there any provision making time the essence of the contract. Time is not generally of the essence of the contract. Civil Code (1910), § 4268 (8). Usually
The plaintiff had acquired an equitable title to the land under his bond for title. Whether there had been a rescission of the contract was a question of fact which should have been submitted to the jury. There was no evidence introduced as to the value of the land at any time. If the contract was rescinded, the vendor should have restored the status of the parties- prior to the signing of the bond for title, less any damages he may have sustained by reason of the failure of the vendee to perform the contract. This being an action for money had and received, if the contract was rescinded the vendor should restore to the vendee the purchase-money paid and the promissory notes signed, less any damages occasioned to the vendor by reason of the failure of the vendee to perform his contract. Without a provision to that effect in the bond for title, or any agreement to that effect, the vendor could not arbitrarily forfeit the amount of the purchase-money paid him. If the contract was rescinded the vendor could not, without any provision or agreement to that effect, keep the land, the purchase-money paid, and the promissory notes given. The status of the
We do not think that any of the other rulings complained of either in the main bill of exceptions or in the cross-bill were erroneous for any reason assigned.
Judgment on main bill of exceptions reversed,; on cross-bill affirmed.