43 S.E.2d 275 | Ga. Ct. App. | 1947
Where A, acting for his wife, B, enters into a preliminary written contract for the sale of land in his own name with C, and before the final consummation of the transaction it is made known to C that A is in *304 fact acting for B and C elects to deal with B, and in compliance with and performance of the preliminary contract C accepts a deed for the land in question from the wife B, C may not thereafter bring an action against A for a breach of the preliminary contract, in the absence of an express undertaking by A, as the terms of the preliminary contract are merged into the deed and the preliminary contract is functus officio.
The defendant demurred to the petition on the ground that the deed referred to was not set out or attached to the petition and that it was not alleged that the sums set out are reasonable and that the petition sought recovery of an illegal measure of damages. The plaintiff amended his petition by attaching the deed referred to in the petition. The defendant filed a renewed demurrer on the following grounds: the allegations that the defendant is indebted to the plaintiff in the sum of $673.50 is a mere conclusion and wholly unsupported by legal allegations; it is not alleged that the sums are reasonable; the petition seeks to recover on an illegal measure of damages; the plaintiff knew at the time he signed the contract with the defendant and at the time the plaintiff accepted the deed from Mrs. Smith that the said Thompson was in possession of the premises and the plaintiff was charged with knowledge of whatever right Thompson had therein, yet failed to have incorporated in the deed any provisions that possession would be given against Thompson on December 1; and any previous agreement was therefore merged in the deed; and it does not appear from the allegations of the petition that the defendant was bound to give physical possession of the property in the sense that it was the defendant's obligation to dispossess the said Thompson; and if so construed, the plaintiff waived his right to have the said Thompson dispossessed; it does not appear that there was any legal impediment to the plaintiff's right to dispossess Thompson, and it does not appear that at any time the plaintiff sought to exercise such right.
The court overruled the demurrer on all grounds and the defendant excepted. *306
The plaintiff alleged that he dealt with the defendant as vendor of the property and as principal and that it was not until the deed of the defendant's wife was tendered to him that he knew that the defendant was acting as agent for him wife, but he further alleges that he fully performed his part of the contract by paying over the purchase-price and assuming the payment of all taxes after November 23, 1945, the date on which the deed was tendered to him, and that he accepted the deed and the wife, the real principal, ratified the contract made by her husband. It appears, therefore, from the petition itself that after the execution of the executory contract of sale and purchase but before its final performance, the principal was made known to the plaintiff and he accepted the deed of the principal as performance of the executory contract and thereby indicated his choice to deal with the principal, and an election deliberately made, with knowledge of facts and absence of fraud, is conclusive, and the party who has once elected, can claim no right to make a second choice. Taking the allegations of the plaintiff to be true as against the demurrer, the defendant was acting as agent for his wife. The fact of this agency was made known before the consummation of the transaction and the plaintiff chose to treat the wife as the opposite party and vendor of the property in question and since it is the rule that where the principal is known the agent is not bound in the absence of an express undertaking on the part of the agent (Gill v. Tison,
Judgment reversed. Sutton, C. J., and Parker, J., concur.