Horine v. Hicks, 25 Ga. App. 802

Horine v. Hicks

25 Ga. App. 802 | Ga. Ct. App. | 1920

Dissenting Opinion

Smith, J., dissenting.

“In order to recover damages in lieu of a specific performance, when the latter cannot be had because the party has put it beyond his power by his conduct, it is essential that a case for specific performance should be made out.” Prater v. Sears, 77 Ga. 28 (2). “The statute of frauds requires *806all contracts for the sale of land or any interest therein to be in writing, signed by the party to be charged therewith or some person by him lawfully authorized. Civil Code [1895], § 2693, par. 4. Every essential element of the sale must be expressed in the writing, to meet the statutory requirement. One of the essentials is that the land must be so described that it is capable of identification. While it is not necessary that the land be described with such precision, that its location and identity are apparent from the description alone, yet the description must be sufficiently clear to indicate with reasonable certainty the land intended to be conveyed.” Tippins v. Phillips, 123 Ga. 415, 417 (51 S. E. 410). The contract in question in this case is too vague and indefinite in the description of the land to be the basis' of a suit for damages for non-performance. No definite starting point is furnished by the terms of the contract. No surveyor could tell whether the fourth line was straight or crooked. The description does not say on what side of Wesley Avenue the land lies, nor in what direction Wesley Avenue runs. Neither does it sajr on which side of the extension of Hemphill Avenue the 1763 feet lie. The. description is in other respects very vague and indefinite. See, in this connection, Neltles v. Glover Realty Co., 141 Ga. 126 (80 S. E. 630); Tippins v. Phillips, supra; Gatins v. Angier, 104 Ga. 386 (30 S. E. 876); Mims v. Gillis, 19 Ga. App. 53, 57 (90 S. E. 1035). The court therefore, in my opinion, did not err in sustaining the general demurrer 'and dismissing the case.

Rehearing

ON APPLICATION TO ALLOW MOTION POR REHEARING.

Stephens, J.

1. Where the remittitur has been regularly transmitted from this court to the trial court and before it has been filed in the trial court and the judgment of this court made the judgment of that court, the remittitur will not be recalled by this court at the instance of the losing party, for the purpose of allowing the filing of a motion for a rehearing, when it does not appear that the judgment of this court is wrong and has been inadvertently rendered. Seaboard Air-Line Railway v. Jones, 119 Ga. 907 (91 S. E. 115). See, in this connection, Hawk v. Western & Atlantic Railroad Co., 146 Ga. 373 (91 S. E. 414).

2. The application of the defendant in error to recall the re*807mittitur and be allowed to file a motion for a rehearing is therefore denied.

Application denied.

Jenkins, P. J., and Hill, J., concur.

Lead Opinion

Stephens, J.

1. In a contract for the sale of land, the following description is sufficiently certain for identification: “ A certain tract or parcel of land lying in Fulton County, Ga., fronting 150 feet on Wesley Ave., 1763 feet, more or less, on what is known as the extension of Hemphill Ave. (being a new road between said tract and the property of Clark Howell), and 300 feet on Peachtree Battle Ave., containing 11.78 acres, and being in land lot 155 of the 17th district of said county, upon which there are situated a two-story house, barn and garage, a two-room servant’s house, and other improvements, known as the ‘ Lee Worsham place.’ ” That is certain which is capable of being made certain.

2. In a suit for damages for breach of such a contract the petition is not subject to special demurrer upon the ground that the description of the property in the contract is too vague and indefinite.

3. The petition otherwise setting out a cause of action, it was improperly dismissed on general demurrer.

Judgment reversed.

Jenkins, P. J., concurs. Smith, J., dissents.

The contract attached to the petition was as follows:

“$5.00. Atlanta, Ga., August 9th, 1919.

“ Eeceived of Mrs.. M. P. Hicks five & no/100 dollars as part payment on a certain tract or parcel of land,” described as in the foregoing decision, “said property having this day been sold to the above-named purchaser by Logan & Scott, agents for and on account of the owner, subject to examination of title, for the sum or consideration of seventeen thousand five hundred ($17,-500.00) dollars, on the following terms,” stating the terms, which include a cash payment of $6,000, “to consist of the conveyance of” a described house and lot at No. 78 West North Avenue, Atlanta, the grantee’s assumption of loans against the property, not exceeding $3,000, and notes for the remainder, payable in stated amounts at stated times. “Each piece of,property above is sold subject to examination and approval of title.

(Signed) “Jas. L. Logan and Henry B.-Scott,

“ Agents for Owner.

“I hereby agree to purchase the above-described property for the price and on the terms stipulated above, provided the title is good. If a marketable title can not be made within a reasonable time, the amount of this receipt shall be refunded.

(Signed) “Mrs. M. P. Hicks, Purchaser.

“The undersigned hereby assents to the foregoing agreement, and 'agrees to pay Logan & Scott the regular real estate commission for services rendered in making the above sale, only when said transaction is fully consummated and when warranty deed to No. 78 West North Avenue and the said notes [described] have been duly executed and delivered to me, provided title to said property is approved by Atlanta Title Guarantee Co.

(Signed) “Louise de Give Horine, Owner.”

J. A. Noyes, for plaintiff,

cited: As to description: Walden v. Walden, 128 Ga. 126; Moody v. Vondereau, 131 Ga. 522; Ray v. Pease, 95 Ga. 153; King v. Brice, 145 Ga. 65; Andrews v. Murphy, 12 Ga. 431; Manning V. Mallard, 144 Ga. 9; Harriss v. Howard, 126 Ga. 325; McAfee V. Arline, 83 Ga. 645; Shackelford v. Orris, 129 Ga. 791; Brice v. Sheffield, 118 Ga. 128; Pearson v. Horne, 139 Ga. 453; Bush v. Black, 142 Ga. 157; Horton v. Murden, 117 Ga. 72; Summerlin v. Hesterly, 20 Ga. 689; Irby v. Gardner, 56 Ga. 643; Huntress v. Portwood, 116 Ga. 351 (distinguished). As to damages: Cowdery v. Greenlea, 126 Ga. 786 (3); King v. Brice, 145 Ga. 65 (3), 69; Brooks v. Miller, 103 Ga. 713; Irwin v. Askew, 74 Ga. 582; Sutton v. So. Ry Co., 101 Ga. 776; Sappington v. Atlanta & West Point R. Co., 127 Ga. 178 (3).

Norman I. Miller, for defendant,

cited: Civil Code (1910), § 4106; Tippins v. Phillips, 123 Ga. 417; Gatins v. Angier, 104 Ga. 386; Richardson v. Perrin, 133 Ga. 721; Mims V. Gillis, 19 Ga. App. 57; Estes V. Winn, 136 Ga. 344; Clayton V. Newberry, 138 Ga. 735; Barnes v. Cowan, 147 Ga. 478; Huntress v. Portwood, 116 Ga. 351; Atlanta & LaGrange R. Co. v. Hodnett, 29 Ga. 461 (2); Pope v. Graniteville Mfg. Co., 1 Ga. App. 185; Jester v. Bainbridge State Bank, 4 Ga. App. 469 (4). Cases cited for plaintiff, supra, distinguished.