Smith v. White, 43 S.E.2d 275

Smith v. White

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.

DECIDED JUNE 18, 1947. The plaintiff, John A. White, filed a petition in the City Court of Decatur against Hoke N. Smith, alleging that he was entitled to recover damages in the amount of $673.50, principal, by reason of the breach of a contract for the sale of a residence. He alleges that on November 7, 1945, he entered into a written contract with the defendant for the sale of a certain parcel of real estate to be used as his residence for a consideration of $6500; and one of the special stipulations of the contract and an essential element of the consideration was "possession to be given on or before December 1, 1945;" on November 23 he fully performed his part of the contract and paid to the defendant the sum of $6500 and assumed the payment of all taxes accruing after said date, and this was done in exactly the form and manner specified in the contract; and he received from the defendant a warranty deed to the property, executed by Mrs. Georgia Grace Smith, wife of the defendant. He further alleges that he had dealt with the defendant as a principal and as owner of the real estate, and it was not until the deed signed by Mrs. Smith was delivered to him that the plaintiff discovered that the defendant was the agent for an undisclosed and concealed principal; and that the principal ratified the aforesaid contract of November 7, and delivered her warranty deed in accordance with the terms and provisions of said contract; but prior to executing the contract on November 7, 1945, with the provision contained therein that possession of the residence would be delivered to the plaintiff on or before December 1, 1945, the defendant placed it beyond his power to deliver possession by reason of the fact that on or about October 1, 1945, the defendant had placed one Henry J. Thompson in possession of the premises with the right to occupy the same, without payment of rent, until such time as the defendant could place the said Thompson in possession *305 of other realty which the defendant had sold to the said Thompson; and that on December 1, 1945, and continuously thereafter until March 1, 1946, Thompson refused to deliver to the plaintiff possession of the premises purchased from the defendant, asserting his right to rely on his agreement with the defendant; the defendant knew that the plaintiff had purchased the property as a home for himself and family and during the period in which the defendant prevented him from occupying the property the plaintiff was forced to live elsewhere, which resulted in his incurring certain enumerated expenses, such as rental of rooms, storage of his furniture, meals in restaurants, etc.

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, 61 Ga. 161; Pearl Assurance CompanyLimited v. Bernath, 185 Ga. 737, 196 S.E. 471, and cases there cited), the plaintiff may not proceed against the husband in this case, unless it can be said that the stipulation in the executory contract that possession was to be delivered on or before December 1, 1945, was an express undertaking on the part of the husband as agent. However, as between the parties, and as we have pointed out the plaintiff elected to treat the wife as the opposite party, it is well settled that where a deed has been executed reducing the preliminary contract for the sale of land to a finality, the terms of the preliminary contract are merged into the deed, and the terms or conditions or recitals contained in the preliminary sales contract which are not included in the deed will be considered as eliminated, abandoned, or discarded *307 and the preliminary contract functus officio. Keiley v.Citizens Savings Bank Trust Co., 173 Ga. 11 (159 S.E. 527); Augusta Land Co. v. Augusta Railway Electric Co.,140 Ga. 519 (79 S.E. 138); Pierce v. Dennett, 163 Ga. 471 (136 S.E. 440); Loftis v. Clay, 164 Ga. 845 (139 S.E. 668); Ingram v. Smith, 62 Ga. App. 335 (7 S.E.2d 922). Consequently, the plaintiff could not under the facts of this case proceed against the defendant husband, and the court erred in overruling the demurrer and refusing to dismiss the case.

Judgment reversed. Sutton, C. J., and Parker, J., concur.