Jоhn and Marilyn Walden sued Conley Smith for breach of contract and fraud, alleging that Smith had misrepresented a material term in a lease/purchase agreement. Asserting several defenses, Smith moved for summary judgment. The trial court determined that the Waldens were estopped from pursuing claims for fraud or breach of contract due to their own conduct in failing to'repudiate the contract after discovering the truth about the purported misrepresentation. Deciding that the Waldens’ claims were legally foreclosed, the trial court awarded summary judgment to Smith. We agree that Smith was entitled to judgment as a matter of law.
On December 2, 1994, the Waldеns and Smith executed a written lease/purchase agreement for a house and 18 acres in Dade County. The term was for 26 months at $400 per month. The purchase рrice was $79,995 with the Waldens receiving credit for rent paid during the lease. At the end of the 26-month period, on February 1, 1997, absent default, the Waldens would “have the exclusivе right and option to purchase the property. . . .” The contract contained a merger clause as well as a clause precluding any oral modification. The final paragraph of the contract stated: “[t]his document sets out the full and complete agreement of the parties, and any other agreements or amendments hereto not in writing shall be null and void.”
Near the expiration of the twenty-six months, a third party expressed interest in purchasing about 1.92 acres on one corner of the property. The Waldens had no objection to that sale, so Smith sold that section to General Oliver Bryant and his wife, Penny M. Bryant. The deed for that sale was recorded on December 26, 1996. When the lease term ended, the Waldens were unable to buy the property because they did not have sufficient funds. It is undisрuted that
The Waldens continued to pay $400 per month in rent and to live in the house on the property. In September 1998, about 18 months after the expiration of the lеase/purchase contract, John Walden told Smith that he had inherited some money from a recently deceased aunt and wanted to buy the property. Smith agreed to sell the property for $54,415, informing Walden he would give a $10,000 credit for the acreage sold to the Bryants and a $15,580 credit for the rent paid. In actuality, as Wаlden explained in his deposition, he had a side agreement with the Bryants to borrow $54,000 from them, buy the property, then convey it to them. Four days after purchasing the property from Smith, Marilyn Walden sold it to the Bryants for $73,594 with the Waldens retaining timber rights. John Walden later sold the timber for more than $20,000.
When Walden recorded the warranty deed aftеr the sale, he then discovered that the Bryants had paid $50,000 for the corner portion and not $10,000 as Smith had allegedly indicated to him. 1 Walden believed that Smith had agreed to “knock off” or reduce the sales price by whatever amount the Bryants paid for the corner. Based on that premise, the Waldens brought suit.
1. The Waldens contend that the trial court erred in granting summary judgment. They urge that the conduct of the parties established a waiver of the written modification requirement in the agreemеnt. Under their theory, by continuing to accept their monthly rental payments, and by later giving them credit toward the purchase price for those payments, Smith evidenсed his agreement to an oral extension of the term of the lease/purchase contract.
Contracts for the sale of land or an interest in land must be in writing to comply with the Statute of Frauds. OCGA § 13-5-30 (4). This rule applies equally to options to purchase land,
Neely v. Sheppard,
Although the Waldens claim that the written terms were changed by verbal agreement, unless an oral modification falls within an exception to the Statute of Frauds, such modification is ineffective.
White v. Orton Indus.,
-- Nor does any exceptiоn to the Statute of Frauds change this result. See
Stonecypher,
There was no evidence to show that Smith and the Waldens entered a written agreement as to the terms for the sale of the remaining realty after the sale of the corner portion. Absent a complete and binding agreement with respect to all essential terms, each party may freely withdraw its bid or proposition. OCGA § 13-3-2. Since a complete and legally sufficient contract did not exist, Smith was entitled to judgment as a matter of law.
Firstline Corp. v. Valdosta-Lowndes County Indus. Auth.,
Nor can the Waldens’ fraud claim survive summary judgment, since they rely on a faulty premise to support that claim, i.e., that Smith remained under a legal obligation to sell the property to them. Even with that assumption in place, the Waldens failed to establish a prima facie case of fraud. The tort of fraud requires proof of five elements: false representation, scienter, intent to induce another to act or to refrain from acting, justifiable reliance, and damage.
Smalls v. Blueprint Dev.,
Here, the actual amount paid by the Bryants was a matter of public record and readily ascertainable upon inquiry. After the Bryants declined to reveal the purchase price, the Waldens could have easily obtained this information by examining public documents
before buying the property. See
Hill v. Century 21 Max Stancil Realty,
2. In light of this hоlding, other issues raised in this appeal are moot.
Judgment affirmed.
Notes
Smith testified that he had agreed to loan $197,000 to the Bryants to enable them to purchase the land and construсt a convenience store. Smith testified that the loan was for $247,000 with the Bryants making a $50,000 down payment.
Including the amount paid in rent, the Waldens paid $64,800 for property which they sold four days later for $73,594 and for which they also received an additional $20,000 from the sale of timber.