140 Ga. App. 541 | Ga. Ct. App. | 1976
This is a suit for damages based upon an alleged breach of contract. The contract consists of an offer by the mortgage corporation in the form of a commitment letter to make two million dollars in FHA and VA loans at a discount of five percent to be made at the maximum
The case came on before the court without a jury, and at the close of plaintiffs evidence defendant moved to dismiss. The court held plaintiff failed to carry the burden of proving the defendant was under any obligation to pay plaintiff the sums prayed for, and dismissed with prejudice. This order was dated and filed the 3rd day of December, 1975. Thereafter findings of fact and conclusions of law were completed and signed on the 23rd of December, 1975, and filed in the clerk’s office on the 29th of December, 1975. Motion for new trial and rule nisi dated the 2nd day of January, 1976, was filed on January 5,1976, and thereafter amendments to the findings of fact and conclusions of law were made on the 8th of January, 1976. Defendant moved to dismiss the motion for new trial because it was filed over 30 days after the final judgment.
The motion for new trial was amended; motion to dismiss was denied; and motion for new trial was denied on its merits. Plaintiff appeals, and by cross appeal defendant appeals the denial of the motion to dismiss the motion for new trial. Held:
1. In an action tried before the court without a jury and upon completion of plaintiffs evidence the court, as trier of facts, may sustain a motion to dismiss on the ground that upon the facts and the law plaintiff has shown no right to relief. But the court is required to make findings of fact and conclusions of law in such cases. Code Ann. §§ 81A-141 (b), 81A-152 (a) (§§ 41 and 52, CPA); Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653, 655 (204 SE2d 331).
2. All of the enumerations of error involve whether or not the offer and acceptance by letter of commitment dated September 7, 1973, by and between the parties amounts to a valid contract requiring the payment of a fee of 1% of the undelivered portion of the FHA and VA loans not made to be due Peachtree Mortgage Corporation, the plaintiff, by the defendant. Even though this instrument does not state that Northside Realty Associates, Inc.
case no. 52596
Judgment reversed on the main appeal.