Irvin v. Locke

Jenkins, Presiding Justice. Mrs. W. F. Locke brought a suit for specific performance on an alleged contract, signed by both parties, and executed in duplicate, which was as follows: “Georgia, Laurens County. This agreement, made and entered into this 4th day of December, 1940, between Mrs. W. F. Locke, party of the first part and J. E. Irvin, as party of the second part, both parties of said State and county, Witnesseth: That the said party of the second part, upon the payment of $608.55 on or before July 1st, 1943, by the said party of the first part, the said J. E. Irvin will then and there execute to the said Mrs. W. F. Locke title papers upon which the said Mrs. Locke will then be obligated to pay an additional sum of $608.55, the time and method to be determined then, upon the following described property, to wit: One — 676 — hundred and thirty-six acres of land more or less, in the 12th land district of said State and county, being known as the Stfeel Place, bounded as follows: north J. B. Burch place, east by G-. N. Weatherly, south by Mrs. Dena Dreyer, west by Pink Steels. All of the sums named above to bear interest from this date at the rate of 8% per annum. This agreement is made in duplicate, and each duplicate, it is agreed, shall be original evidence of the agreement. In witness whereof, the said parties have hereunto set their hands and affixed their seals, the day and year first above written.” The defendant demurred to the petition generally, and specially for several reasons, all of which were cured by amendment, except as to the grounds: that the petition shows on its face that the plaintiff was not entitled to the equitable remedy of specific performance; that the contract was too vague and uncertain to be enforced; that it was unconscionable, in that it provided for no down payment; that any rights that the plaintiff may have had thereunder were shown by the petition to have been forfeited; and that the tender, as set forth in paragraphs 10 and 13 of the petition, which are set forth in the opinion, was inadequate as a matter of law. Exceptions were taken pendente lite to the overruling of the demurrers. On the trial, the defendant introduced evidence as to the tender, which also will be set forth in the opinion. A verdict was rendered in favor of the plaintiff, and a decree for specific performance was entered. Exceptions are now taken to the overruling of the defendant’s motion for a new trial. 1. “Equity will decree specific performance of a written contract to convey land, which is clear and definite in its terms.” Miller v. Watson, 139 Ga. 29 (76 S. E. 585). 2. The. contract sued upon is not unconscionable, in that it did not require a down payment for the land. If the vendor was willing to extend credit for the first payment, as provided by the contract, no legal obstacle prevented him from so doing. 3. The Code, § 96-101, provides as follows: “Three elements are essential to a contract of sale: 1. An identification of the thing sold. 2. An agreement as to the price to be paid. 3. Consent of .the parties.” The contract was not lacking in any of these ingredients necessary to an agreement for the purchase and sale of the land described. (a) While the contract extends definite credit for the first pay — 677 — ment, leaving the time of payment of the second installment in abeyance, the rule under the Code, § 96-106, is that, unless additional credit for the second payment should be agreed on, it would be due immediately. Accordingly, the court did not err in overruling the demurrer setting up the invalidity of the agreement sued on. 4. Tinder the provisions of the Code, § 20-1105, in order to constitute a valid tender, the amount of the offer must be certain and unconditional, and in full of the • obligation. This section provides that the tender may be made by an agent. Paragraphs 10 and 13 of the petition, which set forth the tender, and which are specifically demurred to, are as follows: "10. That your petitioner sent her said husband to the said defendant authorizing him to tender in payment the entire sum in completing the payment of said contract to purchase the aforesaid described real estate, and that your petitioner turned over to W. F. Locke fifteen hundred ($1500.00) dollars, in cash money to be delivered to the defendant, and the same was tendered to the defendant herein named in the presence of witnesses. . .13. That upon the tender of the $1500.00 in cash money to the defendant by W. F. Locke for your petitioner, your petitioner was only taking the defendant’s word for the full amount of interest and the principal of the aforesaid contract to the date of October 30th, 1944. That on account of the attitude of the defendant, your petitioner is now petitioning the honorable court for direction and a decree, as the defendant is trying to defraud your petitioner out of her rights and the enjoyments and benefits of the aforesaid described property.” The petition thus set forth an unconditional tender of a certain amount, and these paragraphs relating to the tender, alleging that the amount thus tendered was in full of the amount claimed by the defendant himself, the grounds of demurrer attacking such paragraphs are without merit. 5. The contract, dated December 4, 1940, provides that the first payment of $608.55 was to be made on or before July 1, 1943, and it is inferable from the petition that the tender of both the first and second payments was made by the plaintiff on October 30, 1944. It appears from the petition that the plaintiff was put into possession of the premises when the contract was executed, and (contrary to the facts in Dukes v. Baugh, 91 Ga. 33, 16 S. E. — 678 — 219), had never surrendered possession back to the defendant, who, it appears had remained content with possession by the plaintiff. Under the circumstances thus set forth by the petition, had the plaintiff forfeited all rights under the contract by her failure to comply promptly with the terms of the contract relating to the time fixed for the first payment under the terms of the credit extended? This ground of the demurrer is without merit. The Code, § 20-704 (9), provides: “Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so.” Accordingly, although the defendant did not promptly meet the first of the two payments under the contract on the date specified, the court did not err in overruling the. demurrer setting up a forfeiture for that reason of the plaintiff’s rights under the contract. 6. On the trial, the plaintiff’s agent testified as to tender as follows: “About October 25, 1944, I had a conversation with John (the defendant), along then somewhere, as to what I owed him on this place. He said I owed him about $1500, but he wouldn’t accept it at that low interest. I got $1500 that John said I Owed him on this 136 acres of land; Mrs. Locke turned it over to me to go over and tender it to John, and he refused to take it. I said, T come to bring you the money,’ and he said, Tow much,’ and I said c$1500, that is what you said I owed you;’ and he said, Tut another $1000 with it, and I will take it and give you a deed.’ I did tender him the $1500 that he said I owed.” On cross-examination, he testified: “The form of the money was paper money. I carried it to John in a six-pound paper sack, about this long and that wide (indicating) and as thick as a paper sack. As to the denominations of the bills, they were 20’s, 10’s, 5’s, and l’s, all kinds; there were no 100’s, and I don’t think I had any 50’s. It was in the daytime, about nine or ten o’clock in the morning. We assembled the money and put it in a paper sack at home the night before, me and my wife counted it, and I know how much was in it; $1500 exactly. We got to-John’s house that morning between nine and ten o’clock. I did not count the money out to John, I offered it to him to count it. I offered him the sack and he said he didn’t want it. . . It was not Sunday, but I disremember whether it was the first of the week or the last. As to my showing John the money, I pulled part of it out of the sack and said, — 679 — ‘John, here is the money, I have come to pay yon;’ and he said, ‘How much?’ and I said ‘$1500, that is what you said you wanted;’ and he said, ‘Put another thousand dollars with it and I will take it and give you a deed.’ I said, ‘Here is the deed, John, and the money, I brought a deed with me.’ As to my demanding that he sign the deed before I gave him the money, I told him to get his book and figure it up, that ‘You said it was $1500, and I have that; I brought a deed with me, and we will have to go to Cadwell and get it witnessed.’ As to my not leaving the monejr under any other conditions, only that he sign the deed, I would have left it there for him to go to Cadwell to sign the deed. I wanted to have a settlement then and there, and that was the condition upon which I tendered him the money. . . I tendered him the money in cash and offered it to him upon the condition that he would sign the deed.” The Code provides that a tender must be unconditional, and it has several times been held that a tender of the amount due for land sold under a bond for title, with a condition attached to the tender that the obligor make a deed in accordance with the bond, is not a good and unconditional tender. DeGraffenreid v. Menard, 103 Ga. 651 (30 S. E. 560); Morris v. Continental Ins. Co., 116 Ga. 53 (42 S. E. 474); Terry v. Keim, 122 Ga. 43 (49 S. E. 736). It thus appears from the evidence of the agent making the alleged tender, when taken in its entirety, that is, on both direct and cross-examination, that the tender was, while originally unconditional and as such rejected, ultimately made conditional, in that the vendor was required to execute the deed called for by the bond. There was, therefore, under the decisions last cited, a variance between the allegata in the petition and the probata adduced on the trial; and the evidence, thus varying from the allegata of the petition, could have been objected to as failing to conform. However, this was not done, and the evidence was admitted without objection. Had the evidence been objected to, the plaintiff, without adding a new and distinct cause of action, could have amended her petition, by alleging that upon the outright tender being made, the defendant refused it unless an additional $1000 was added thereto. Since the law does not require vain and’ useless procedure, a refusal by the obligor to accept the original outright tender in accordance with the contract, without an additional — 680 — $1000 being added thereto, dispensed with any necessity of making same; and this is true although the plaintiff might have subsequently made an additional tender coupled with the condition that the defendant would execute the deed, which the defendant refused to do for the reason given that an additional $1000 was required. Ansley v. Hightower, 120 Ga. 719 (4), (48 S. E. 197). Under such circumstances, the failure of the defendant to object to the testimony dispensed with the necessity of amending her petition by setting forth the absence of a necessity for tendering, and the case stands as if the petition had been amended accordingly. Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579); Ocean Steamship Co. v. Williams, 69 Ga. 251 (4a); Steed v. Rees, 192 Ga. 20, 24 (2) (14 S. E. 2d, 474); Taylor v. Taylor, 195 Ga. 711, 721 (11) (25 S. E. 2d, 506); Grice v. Grice, 197 Ga. 686, 699 (30 S. E. 2d, 183). The principle just stated in no wise conflicts with the ruling by this court in Roberts v. Mayer, 191 Ga. 588 (13 S. E. 2d, 382). The Roberts case went, off on demurrer. The court held that, since the petition (contrary to that in the instant case) failed to allege either a valid tender, or facts such as would excuse a tender, the petition was properly dismissed on demurrer. 7. The foregoing rulings deal with the contentions of the plaintiff in error, except the assignments of error relating to the charge; but, since the evidence was not in dispute and, under the rules announced, a verdict was demanded in favor of the plaintiff, it is unnecessary to consider such assignments of error. Judgment affirmed. All the Justices concur, except Duclcworth, J., who dissents.