123 Ga. 201 | Ga. | 1905
Wheatley brought an action for the specific performance of an alleged contract for the purchase of land. The
1. The proper construction of the paper relied on. by the plaintiff as a contract is that the defendant rented the land to the. plaintiff for the year 1903, and gave him an option to purchase. It has been held that an agreement by a lessor to give a lessee, at the end of the term, the “refusal” of the premises for another definite term, was merely an expression of preference for the lessee over others, and did not bind the lessor to renew the lease. Arkansas Pass Land Co. v. Hanaford, 4 Tex. Civ. App. 286. A similar construction of the word was given in a case where one person promised to give another “ the refusal [of land] when he sold.” Deere v. Nelson, 73 Iowa, 188. On the other hand, it has been expressly held that an agreement in' a lease to give the lessee “the refusal” for another term bound the lessor to rent to the lessee for that term, upon the same terms and conditions as:
2. As a general rule, the consideration of a contract is open to inquiry as between the original parties, and even the consideration of a deed may be inquired into when the principles of justice require it. Finney v. Cadwallader, 55 Ga. 78; Civil Code, § 3599. But this rule is applicable only where the statement as to the consideration in the contract is merely by way Of recital. The consideration may be so referred to in the contract as to make it one of its terms and conditions. When this is true, parol evidence is not admissible to vary the term, although the term relates to the consideration. The rule is thus stated in 6 American and English Enc. Law (p. 775): “When, however, the statement of the consideration leaves the field of mere recital and enters that of contract, thereby creating and attesting rights, as shown by the intention of the parties to be gathered from the instrument, it is no longer open to contradiction by extrinsic evidence.” See also Browne, Parol Ev. § 31, p. 44. In a written contract which carries on its face mutual promises, terms and conditions expressed on one side may be the consideration for terms and conditions expressed on the other. In such a case proof of a consideration different from that expressed in the written instrument might alter its terms and conditions, and if it would, it is inadmissible. Burke v. Napier, 106 Ga. 329. The contract under consideration in the present case contains on its face mutual promises. There was a promise on the part, of Wheatley to pay one thousand pounds of cotton, and
3. There was no plea alleging that that portion of the contract in reference to the option was inserted as a result of fraud, accident, or mistake, and no prayer for a reformation of the contract; and therefore the evidence offered to show that the writing did not constitute the real undertaking of the parties was properly excluded.
4. When a vendor brings an action to compel the specific performance of a contract to buy land, it is incumbent upon him to show an offer of performance on his part by the tender of sufficient title deeds, or by offering to execute such a deed wdien its preparation does not, by the terms of the agreement, devolve upon the vendee. But in an application for specific performance by the vendee, it is not necessary to show that he presented a deed for execution, unless under the terms of the agreement the preparation of the deed devolved upon him. See Emery v. Atlanta Exchange, 88 Ga. 327.
5. Parol evidence is admissible to identify land which is the subject-matter of a contract and which is described in the contract merely in general terms, provided the general description is such as, in the light of parol evidence, to clearly identify the property. Johnson v. McKay, 119 Ga. 196. The contract in the present case referred to the land as “Miss Lowe Wellmaker’s place.” If this had been the only description of the laqd, parol
6. Applying the principles above laid down, there was no error in overruling the demurrer to the petition, nor in refusing to grant a new trial.
Judgment affirmed.