Opinion
38886.
DECIDED SEPTEMBER 6, 1961.
Damages for breach of contract. Fulton Civil Court. Before Judge Wright.
Smith, Swift, Currie, McGhee Hancock, Charles L. Weltner, for plaintiff in error.
Sam G. Dettelbach, contra.
A written option contract for the purchase of land which contains special stipulations that "property to be filled and paved level with street and filling station level" and "all cash on closing subject to Turner-Patterson contract going through" is too indefinite and uncertain to be enforceable where no keys are furnished whereby the terms of the contract can be made certain.
DECIDED SEPTEMBER 6, 1961.
James B. Burden brought an action for damages of $4,000 in lieu of specific performance against Mrs. J. S. Thomas in the Civil Court of Fulton County for breach of an option contract to sell him certain real estate. The writing sued upon, which was written on a standard contract for sale of realty form, contained the usual provisions to the effect that this contract constituted the sole and entire agreement between the parties and that the special stipulations, which were typewritten in, should, if conflicting with the printed matter, control. The defendant's demurrers to the plaintiff's amended petition attacked the following special stipulations as being so uncertain, indefinite and unclear as to render the agreement unenforceable: (1) "All cash on closing" — "Subject to Turner-Patterson contract going through"; (2) "Taxes to be prorated at close of sale. Sale to be closed on or before 90 day [sic] from acceptance of this option. Property to be filled and paved level with street and filling station level. The earnest money to be option money and go to seller if purchaser fails to consummate the deal. Sellor [sic] or purchaser has no responsibility — beyond the $100.00 paid to the agent." (Italics ours). The plaintiff's amended petition alleged that the "contract" referred to in (1) above was one which had subsequently been concluded by the defendant with a contractor, in connection with the construction of a filling station adjacent to the property described in the said option. It further alleged that the provision as to filling and paving evidenced an agreement of the parties that the defendant was to assume this obligation. As to ". . . no responsibility beyond the $100.00 paid to the agent," the plaintiff alleges that this is evidence of their agreement that in case the plaintiff did not exercise his option to purchase the property, the defendant was to be liable to the real estate agent only for the $100 for services rendered. The petition as amended alleged that the plaintiff, within the ninety-day period provided by the option contract, did advise the defendant that he was exercising the option and that he was ready, willing and able to tender to her the purchase money in cash, but that the defendant waived the necessity of a formal tender by refusing to sell the property, giving as a reason the inadequacy of the consideration. The contract price was $12,000 and the defendant alleges the fair market value of the land to be $18,000.
The plaintiff assigns as error the judgment of the court dismissing the petition on general demurrer.
The plaintiff has elected to seek damages for the defendant's alleged breach of the written option contract which he may do. Reed v. Dougherty, 94 Ga. 661 ( 20 S.E. 965), cited in Morris v. McKee, 96 Ga. 611 ( 24 S.E. 142); Crim v. Southern Realty c. Corp., 38 Ga. App. 502 ( 144 S.E. 342).
The provision: "Property to be filled and paved level with street and filling station level" does not specify by whom or when, or with what material the paving was to have been done. By applying the rule that the intention of the parties is the prevailing consideration in the construction of contracts (see Code § 20-702; Dorsey v. Rankin, 43 Ga. App. 12 (1), 157 S.E. 876), we can probably say that the parties had in mind that the vendor should assume this obligation, as the vendor would have no interest in what the vendee did with the land after having purchased it. The other questions, as to when and with what material it was to be paved, are not as easily determined. The intention cannot be determined since it does not appear, directly or indirectly, in either the printed contract or the typewritten special stipulations. This provision, having been added as a special stipulation, must be considered a material consideration, and language which is an essential and inseparable part of the contract should be definite and certain. Trust Co. of Ga. v. Neal, 161 Ga. 965 ( 132 S.E. 385). The requisite certainty is also set out in Dowling v. Doyle, 149 Ga. 727, 733 ( 102 S.E. 27): "We recognize the rule that whether the contract be such as is provable by parol or is required by the statute of frauds to be in writing, it must be certain and unequivocal in all its essential terms, either within itself or by reference to some other agreement or matter, or it can not be specifically enforced. . . It is, however, established that the certainty required must extend to all the particulars essential to the enforcement of the contract. It is essential that the contract be certain and definite as to the promise or engagement, as to the parties to whom the conveyance is to be made, as to the description of the subject-matter, as to the consideration of the contract, and as to the time and mode of performance." See also Sturdivant v. Walker, 202 Ga. 585 ( 43 S.E.2d 527); Odum v. Downing Co., 177 Ga. 787 ( 171 S.E. 294); Saye v. Adams Loan c. Co., 173 Ga. 24 ( 159 S.E. 575); Williams v. Manchester Building Supply Co., 213 Ga. 99 ( 97 S.E.2d 129), and cases cited.
The plaintiff urges that there is ambiguity in the terms of the contract and therefore that the intention of the parties is a question for the jury, and that parol evidence should be admitted to explain these ambiguities by proof of their agreement at the time of the execution of the contract. See: Code § 20-704 (1); Summerour v. Pappa, 119 Ga. 1 (4) ( 45 S.E. 713); Pidcock v. Nance, 15 Ga. App. 794 (3) ( 84 S.E. 226) and other cases to this effect. "The word `ambiguity' has been variously defined by the courts, but for the purpose of this case it is sufficient to say that a word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one." Dorsey v. Clements, 202 Ga. 820, 823 ( 44 S.E.2d 783); Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800 ( 55 S.E. 923); First Nat. Bank of Sparta v. Hancock Warehouse Co., 142 Ga. 99 (1) ( 82 S.E. 481). An ambiguity, then, involves a choice between two or more constructions of the contract. Where, as here, there is no ambiguity, and the terms of the contract are not set out with sufficient particularity to enable the court to say what in fact was intended by the parties as full compliance, then the matter of a choice between two or more constructions is not involved. There is simply not enough certainty to make the contract enforceable without adding to it by parol evidence. The rules involving ambiguous contracts do not apply here.
The case of Tippins v. Phillips, 123 Ga. 415 ( 51 S.E. 410), while involving an inadequate description of land, nevertheless furnishes a guide as to the minimum amount of certainty which is a requisite in such a case. In that case, it was said that "neither specific performance nor damages for its breach will be decreed in an action on a written option to purchase land, where the land is so vaguely described that the writing furnishes no key to its identification." (Italics ours). In Valdosta Machinery Co. v. Finley, 164 Ga. 706 ( 139 S.E. 337), parol evidence was admitted to further identify the subject-matter of the contract, but only because there was a sufficient "key" in the description in the contract which the court could use in ascertaining the complete identity of the subject-matter. In the instant case, the contract furnishes no "key" by which the details of the filling and paving can be identified sufficiently to enable the contract to be enforced. Code Ann. § 20-107, catchword "Description."
A great deal of confusion has arisen in our law as to the question whether a greater degree of certainty is required in the terms of an agreement which it is sought to have specifically performed than is necessary in a contract which is the basis of an action at law for damages. The statement in Prater v. Sears, 77 Ga. 28, and possibly other cases to the effect that to entitle one to recover damages in lieu of specific performance the complainant must prove his right to the latter remedy has probably been misunderstood. The statement as originally made meant only that a right to specific performance was necessary to be shown only for the purpose of giving a court of equity jurisdiction to render a judgment for damages in lieu of specific performance. Since the Uniform Procedure Act of 1887 such a showing is no longer necessary. Yet the requirement stated has been picked up in numerous decisions as having a meaning completely different from the original meaning. The Supreme Court of Georgia in Morgan v. Hemphill, 214 Ga. 555 ( 105 S.E.2d 580), quoted authority to the effect that "It may well be doubted, however, whether there has been any practical recognition of any such distinction by the courts," and in that case, which involved only an action at law for damages, the court held that the same test of definiteness would apply as applies in a case involving specific performance. Whatever the rule may be where an action for specific performance includes an alternative prayer for damages in lieu of specific performance we think that indefiniteness as to any material provision of a contract would preclude an action, solely at law, for damages based upon the contract. The rationale of the "key" rule applies as well to other terms and conditions of contracts as it does to the description of property, real or personal. That rationale is that where there is no definiteness within the four corners of the contract neither parol nor other extraneous evidence alone may supply the deficiency. If there is a "key" within the contract through which other evidence may show with certainty what the parties intended, the requirement of definiteness is satisfied. For example, if the instant contract had provided that the paving should be done with the same material as that with which all of the surrounding or adjacent land was paved, the key would have been sufficient. What we have said with reference to the paving provisions applies to the reference to the "Turner-Patterson" contract's going through. There is no key to what the contract is or who the parties are, even if we could know what "going through" means. We think that the stipulation regarding the earnest money refers to a limitation of commissions if no sale took place and was not intended to render the rest of the contract impossible of enforcement and absolutely absurd. The rule in specific performance cases as to the necessity of alleging clean hands and the fairness of the contract is an equity rule and not applicable to actions at law for damages.
The court did not err in sustaining the general demurrer to the petition and in dismissing the action.
Judgment affirmed. Bell and Hall, JJ., concur.