Opinion
34700.
DECIDED NOVEMBER 7, 1953.
Action on contract. Before Judge Fort. Muscogee Superior Court. April 13, 1953.
Grover C. Wills, Jr., Wm. H. Leonard, for plaintiff in error.
J. Willard Register, Foley, Chappell, Kelley Champion, contra.
A contract by which parties exchange real estate, in order to be enforceable, must identify the property to be exchanged or at least furnish a key to its identity; and an action by a real-estate broker to recover commissions from the purchaser based on his breach of such a contract of purchase and sale of realty, which contract did not set forth a sufficient description of the property involved to identify it, or to furnish a key to its identity, was properly dismissed on general demurrer.
DECIDED NOVEMBER 7, 1953.
Lewis M. Bryan filed suit in the Superior Court of Muscogee County against E. A. Rusk to recover a certain real-estate commission alleged to be due him by the defendant under the terms of an alleged contract for the sale of certain property of Mrs. Geneva E. Jones. The defendant filed general and special demurrers; the trial court sustained the general demurrer and dismissed the petition, and the exception here is to that ruling.
The amended petition alleged that the defendant was indebted in the sum of $1,960 to the plaintiff, a duly licensed real-estate broker engaged in the business of negotiating and effecting sales of real estate in Muscogee County, Georgia. Paragraph 7 of the petition was as follows: "Plaintiff shows that prior to December 18, 1951, Mrs. Geneva E. Jones of said county placed in plaintiff's hands to sell for her a certain lot of land and improvements located on the Victory Highway in Muscogee County, Georgia, which said land and improvements are more particularly described in the contract which is hereto attached, made a part of this petition, and marked Exhibit `A', said land being more particularly described as follows: . ." Then follows a full and complete description of the land of Mrs. Jones referred to, with reference in the description to a plat or diagram which is also incorporated in the petition as an exhibit, and which was apparently the same diagram or plat that was attached to the contract of sale. The plaintiff further alleged that he offered the property of Mrs. Jones to the defendant at a named price; that the defendant offered to purchase the said real estate on the basis of $25,000 in cash and to exchange therefor certain improved rural property of the defendant known as "White Oaks," lying partly in Harris County and partly in Muscogee County, Georgia; that the said "White Oaks" was well known to the defendant and Mrs. Jones, she having at one time owned "White Oaks," and there follows in the petition a full and complete description of the said property known as "White Oaks"; that, in making the offer referred to above, the defendant executed the contract which is attached to the petition marked Exhibit "A," on the date shown thereon, delivered to the plaintiff his check for $1,000 as earnest money, and constituted the plaintiff his agent to purchase the lands and improvements from Mrs. Geneva E. Jones on the terms and conditions described in the petition and in the contract; that the plaintiff induced Mrs. Jones to accept the defendant's offer; that the defendant ratified the making of the contract by accepting a copy of the same after Mrs. Jones had signed the same; that, under the terms of the contract, the plaintiff was to receive $1,960 for his services in negotiating the sale; and that Mrs. Jones was ready, able, and willing to complete the transaction according to the terms of the contract, but that the defendant failed and refused to pay the purchase money and stopped payment on the check given as earnest money.
The contract of sale referred to in the petition and attached thereto as an exhibit provided: that the "undersigned seller agrees to sell, and the undersigned purchaser agrees to buy, through Bryan Realty Company as agent, all that certain lot of land in Columbus, Muscogee County, Georgia, to wit: All that tract of land described by attached sketch, showing boundaries, and including 8 room brick house, fronting a distance on Victory Drive of 210 feet, and the depth as shown on attached plat. . . The purchase price of said property shall be twenty five thousand and No[100 [dollars] cash and `White Oaks' country estate . . . to be paid as follows: Cash and country estate subject to a clear and merchantable title." The contract further provided: that "The agent in negotiating this contract has rendered a valuable service and seller agrees to pay agent's commission in accordance with the schedule printed on the reverse side hereof. If sale is not consummated due to default of purchaser, seller shall not be obligated to pay any commission, but purchaser hereby agrees to pay said commission to said agent."
The sole question before this court is whether or not the description of the real estate referred to in the contract between Mrs. Jones and Mr. Rusk was sufficient. If the real estate which either of the parties sought to exchange was not described with sufficient particularity, the contract was invalid and consequently the petition set forth no cause of action.
The description of Mrs. Jones' tract, in our opinion, is not sufficient. We are incorporating in the report of this case, and as a part of this opinion an exact copy of the diagram or plat referred to in the contract of sale and attached to the petition as an exhibit. An examination of this diagram or plat in connection with the description referred to in the contract does not disclose what property is intended to be conveyed or furnish a key to its description.
The description of the property that was to be conveyed by Mr. Rusk to Mrs. Jones is even more indefinite in the contract of sale. It is simply referred to therein as "White Oaks," without indicating in what county, State, or even country it is located. If the contract had been captioned as being drawn in Muscogee County, perhaps this difficulty might have been relieved, and the property presumed to be in Muscogee County, but the contract is not so captioned. While ordinarily, where a piece of property is described in a contract of this nature by reference to its name alone this is sufficient, this rule does not apply where there is no key to confine the location of the named piece of property within the confines of a particular State and county. The decision in Molton v. Woodruff, 175 Ga. 168 ( 165 S.E. 59), we think is exactly in point. In that case it was held: "Where a key can be discovered in the wording of a contract purporting to describe realty, parol evidence is admissible to render certain that which is uncertain in the descriptive terms of the instrument. But a contract of sale and purchase, in which the property involved is described as `house and lot known as 290 Hillyer Ave. (on cor. Hillyer and Napier Ave.)' is so vague and indefinite as not to be enforceable by a decree for specific performance. It does not appear from the instrument in what city, county, or State the house and lot is located. There is nothing in the instrument from which it can be inferred that said house and lot is in Bibb County, Georgia, except that the contracting parties are said to be `of the County of Bibb, State of Georgia.' In this day of varied commercial transactions, contracting parties frequently have transactions away from their homes; but even if contracts are entered into at the residence of both the contracting parties, it does not follow as a matter of course that the real estate bargained is not located in another county or another State from that in which either of the contracting parties have at any time resided."
In view of what is written above, we hold that the judge of the superior court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.