Watkins v. Hendricks, 137 Ga. 330

Watkins v. Hendricks

137 Ga. 330 | Ga. | 1912

Lumpkin, J.

1. While time is not ordinarily of the essence of the contract, it may become so by express agreement or by reasonable construction. Civil Code (1910), § 4268 (8). In this ease the purchaser of land in 1902 agreed to pay for it in five installments, payable on January 1st of each year, and to clear, improve, and put in cultivation twelve acres of land a year. The contract provided that in the event the purchaser failed to make the clearings or improvements as agreed, or failed to pay the purchase-money “as above mentioned, then this contract or agreement is to be null and void, and rights of said J. J. Watkins [the purchaser] to the possession of said land shall cease.” If the purchaser made the improvements, but failed to make the payments of purchase-money “aforesaid,” the improvements were to be accepted as settlement of rent for the land. In another clause the purchaser agreed, “in the event he failed to do and perform any of the above and foregoing stipulations and agreements, either in the improvement of said place or payment of purchase-money or any part or installment of the same, that his right to the possession of said property ceases, and he will at once without process of law, upon notice given her [him] by the said Nancy Hendricks [the vendor], her agent, or attorney, or other representative, deliver quiet and peaceable possession of the same.” This was signed by both parties. Under the terms of this agreement time was of the essence of the contract. McDaniel v. Gray & Co., 69 Ga. 433; Dukes v. Baugh, 91 Ga. 33 (16 S. E. 219); Ellis v. Bryant, 120 Ga. 890, 893 (48 S. E. 352).

2. The petition does not allege that the purchaser made or tendered the payments at the times agreed on, or state any sufficient reason for the failure, except as to the first installment, the time for the payment of which was alleged to have been extended. The plaintiff alleged in general terms, the tendering of “the whole amount due on said contract” to the transferee of the vendor, in *332July, 1905, and to the vendor in the spring of 1907. The installments due in January, 1904 and 1905, were not paid. Nor was that due in 1906 or 1907 tendered till the spring of the latter year, after the other party had retaken possession in 1906. The equitable petition, which, was filed in 1908, alleged that about fifty acres had been improved and put in cultivation.

The plaintiff thus comes into a court of equity praying specific performance of a contract where time was of the essence, though showing that he himself has not performed his own contract, ahd offering no reason therefor. The original petition was accordingly demurrable.

3. The prayer for damages in the event that the plaintiff can not have specific performance adds nothing to the ease. Under the allegations of the petition, he was entitled neither to specific performance nor to damages for breach of contract in lieu thereof. Prater v. Sears, 77 Ga. 28 (2).

4. It appears that the plaintiff in error tendered an amendment to his petition, but the court refused to allow it. Error was assigned on this ruling. It has been settled by numerous decisions that, in such a case, the rejected amendment can not be brought to this court as a part of the record. The presiding judge having refused to allow it to be made a part of the record, counsel could not, by filing it in spite of such ruling, make record of it and bring it to this court as such. Moore v. Guyton, 110 Ga. 330 (35 S. E. 339); Hays v. Clay, 124 Ga. 908 (53 S. E. 399), and citations. The assignment of error based on this ground can not be considered; but the case must be determined on the original petition and the demurrer thereto.

Judgment affirmed.

All the Justices concur, except Hill, J., not presiding\