34 Ga. App. 568 | Ga. Ct. App. | 1925
Lead Opinion
The answer presented no issue of fact for determination by the jury, and the court did not err in striking it. Properly construed, it does not allege an absolute refusal by the parties who were to convey title to comply with their contract, but avers merely that they failed to make the conveyance in response to the defendant’s offer to pay as soon as the conveyance was made. Under the terms of the contract as evidenced by the bond for title and notes, the making of titles to the defendant was not a condition of his obligation to pay the notes, but payment of the notes was a condition precedent to his right to demand a deed. The obligors in the bond for title, under the terms thereof, were not required to execute title to the defendant until compliance with his own obligation to pay the purchase-price, or a proper tender of payment. The tender alleged to have been made was burdened with the unauthorized condition that the defendant should have a deed executed to him in accordance with the bond for title. According to § 4322 of the Civil Code (1910), a tender must be “unconditional except for a receipt in full or delivery of' the obligation.” The answer failed to show a breach of the bond, or any other reason why the plaintiff was not entitled to recover. See DeGraffenried v. Menard, 103 Ga. 651 (1) (30 S. E. 560); Elder v. Johnson, 115 Ga. 691 (2) (42 S. E. 51); Morris v. Continental Ins. Co., 115 Ga. 53 (1) (42 S. E. 51); Terry v. Keim, 122 Ga. 43 (49 S. E. 736); Smith v. Tatum, 140 Ga. 719 (3 a) (79 S. E. 775); Fraser v. Jarrett, 153 Ga. 441 (3) (112 S. E. 487).
Judgment affirmed.
Concurrence Opinion
I concur specially upon the ground that the plea fails to sufficiently allege a tender.
