1. Where a general demurrer to a count of a petition is sustained with leave to amend, and the plaintiff does not except to the order but files an amendment, the ruling on general demurrer becomes the law of the case. Where the amendment adds nothing new or of substance to such count, but is a mere elaboration of the averments of the original petition, it is error to overrule a demurrer to the amendment and to the count as amended, assailing the amended count on this ground.

2. In an action for damages because of the alleged breach of a contract, where the court sustained certain special demurrers to a count of the petition, and struck from the count all allegations as to the defendant's alleged breach, and an amendment to the count was filed, setting up several different theories as to how the contract was breached, which are inconsistent with the breach originally alleged and inconsistent with each other, it was error to overrule the demurrers of the defendant to the amendment and the count as amended, pointing out these deficiencies.

No. 17061. MAY 9, 1950.

This case is here on a bill of exceptions, which assigns error on the overruling of the defendant's motion to dismiss the petition as amended, and also on exceptions pendente lite filed to prior rulings on the demurrers of the defendant.

S. R. Langford filed suit against E. L. Douglas in two counts. Certain general demurrers to count 1 were sustained, and the general demurrers to count 2 were overruled. Certain special demurrers to each count were sustained and others overruled. The defendant filed exceptions pendente lite to this order in so far as it overruled his demurrers, but these exceptions were not filed within the time allowed by law. The plaintiff, being granted leave, filed amendments to both counts. The defendant filed general and special demurrers to the amendments and to the petition as amended, all of which demurrers were overruled, and timely exceptions pendente lite filed. Subsequently the defendant's written motion to dismiss the petition on both counts as amended was overruled.

Count 1 of the original petition seeks to require the defendant to specifically perform a written contract for the sale of real estate. The contract, a copy of which is attached to the petition, is a real-estate-broker's sale contract signed by both parties, dated June 20, 1947, whereby the plaintiff is the buyer and the defendant agrees to sell through McNabb Realty Company a tract of land in DeKalb County for a consideration of $12,000. A portion of the contract recites: "Seller agrees to furnish good and marketable title to said property and buyer shall have a reasonable time in which to examine the same. If buyer finds any legal defects to title, seller shall be furnished with a written statement thereof and given a reasonable time in which to correct the same. It is agreed that such papers that may be legally necessary to carry out the terms of this contract shall be executed and delivered by the parties at interest as soon as the validity of the title to said property has been established." It was alleged in paragraph 4 of count 1 that, upon the plaintiff having the title examined, five specific defects were found, and that said defects had the effect of making the title to the property not marketable and good. Paragraph 7 alleged that notice of these defects was given to the defendant, and he informed plaintiff on July 25, 1947, that he had canceled and rescinded the contract and "was unwilling to abide by the terms of the sale." It was alleged that the defects could be cured by the defendant by registering the title under the Torrens Act, or by obtaining deeds from third persons, who were named. The prayers of count 1 were that the court direct the defendant to convey to the plaintiff a good and marketable title after having eliminated all defects therein.

The defendant filed general and special demurrers to this count. On December 6, 1947, general grounds 2 and 4 of the demurrer were sustained and the other general grounds overruled. Ground 2 alleged: "It [the petition] prays for relief which the court cannot grant, or decree, to wit, specific performance of the contract of which a material part has to be settled by future negotiations between the parties." Ground 4 alleged "That no sufficient grounds are set out which entitle plaintiff to the extraordinary relief prayed." One ground of special demurrer was sustained. By leave of the court the plaintiff filed an amendment that struck paragraph 4 of count 1 and substituted a new paragraph, which alleged that the defendant did not have a good and marketable title to the property sought to be sold, but that the record title was vested in a named third person. To this amendment and to the petition as amended the defendant filed renewed demurrers, one of the grounds being that the demurrers sustained by the court had not been met by the amendment. These demurrers were overruled on May 24, 1948, and exceptions pendente lite were duly filed by the defendant. On January 23, 1950, the written motion to dismiss the petition as amended was overruled.

In count 2 as originally filed, the plaintiff seeks to recover damages by reason of an alleged breach of the sales contract which we have set out above. This count sets out the contract, and in paragraph 17 specifies the same defects in the title as were set out in count 1. Paragraph 18 of this count alleged: "Your petitioner shows that the defendant has advised him that he is unwilling to give him a good and marketable title and that defendant will not abide by the contract but considers the same canceled, and he refuses to convey to your petitioner the property according to the terms and conditions of said contract." It was alleged that the agreed purchase-price of the property was $12,000 and its market value $27,000, and the plaintiff prayed judgment for the difference between these sums.

The defendant's general demurrer to this count was overruled. Certain special demurrers were sustained. The court struck paragraph 17 of the petition, which set out the alleged defects in the defendant's title, and also struck paragraph 18, which is set out above. No exceptions were filed by the plaintiff. Exceptions pendente lite were filed by the defendant to the order which overruled certain paragraphs of his demurrers, but these exceptions were not filed within the time provided by law. The plaintiff thereupon filed an amendment to count 2 by adding nine paragraphs, which alleged substantially the following:

21. Petitioner had the title to the property described in paragraph 15 above examined. A complete abstract of the title to said property is attached to and made a part of this petition and is marked Exhibit C.

22. The defendant, E. L. Douglas, does not have a good and marketable title to the property described above.

23. There is no title of record into E. L. Douglas, nor has E. L. Douglas a title by possession for 20 years, or possession for 7 years under color of title, or by inheritance, or by devise or gift, or in any other way.

24. In accordance with the terms of the contract of sale, petitioner communicated in writing to the defendant a list of the legal defects in the title. A copy of said communication is attached to and made a part of this petition and is marked Exhibit D.

25. The defendant then refused and now refuses to do any act toward establishing a good and merchantable title to the property described, and then refused and now refuses to correct the defects in his title, as is set forth in the contract which is attached as Exhibit A.

26. The defendant not only refuses to correct the defects in his title, but then refused and now refuses to convey the title to said property even in a defective condition, and stated to petitioner that he considered the contract canceled and that he would not convey title to petitioner.

27. Petitioner, despite the defects pointed out in Exhibit D to this petition, tendered the purchase-money provided in the contract, and requested compliance with the contract.

28. Petitioner then offered and now offers to bring, at his own expense, such action as is appropriate to establish the fact that the defendant has a good and marketable title to the premises described above.

29. The defendant then refused and now refuses to bring such an action or to allow petitioner to bring such an action in his name.

To this amendment and to the petition as amended the defendant filed general and special demurrers, the grounds of these general demurrers being: (a) the demurrers sustained by the court were not met; (b) the amended petition did not set out a cause of action in either count; (c) the amendment introduced a new cause of action; (d) the amendment changed the cause of action; (e) the amendment alleged a new construction of the contract and a different breach. Certain special demurrers were interposed, on the ground that the allegations in the amendment as to the breach of contract were inconsistent, indefinite, uncertain, and vague. All the demurrers were overruled and exceptions pendente lite were properly filed to this order, and subsequently, on January 23, 1950, the defendant's written motion to dismiss the petition as amended was overruled.

ALMAND, Justice.

1. As to count 1 of the petition, the plaintiff did not file any exceptions to the part of the order of December 6, 1947, sustaining two grounds of general demurrer to this count. That order established the law of the case, and unless the amendment of December 30, 1947, cured the fatal deficiencies existing in the original petition, it was subject to dismissal under the renewed demurrer. Rivers v. Key, 189 Ga. 832 (1) ( 7 S.E.2d 732); Darling Stores Corp. v. Beatus, 197 Ga. 125 ( 28 S.E.2d 124).

Reference to the pleadings, which are substantially set forth in the statement of facts, discloses that the amendment to this count added no new or substantial averments to the original petition, and failed to meet the defects pointed out by the general demurrer. It was therefore error for the court not to sustain the renewed demurrers to count 1 as amended. Clark v. Ganson, 144 Ga. 544 ( 87 S.E. 670).

2. We next consider the assignments of error on exceptions pendente lite, assigning error on the order of May 24, 1948, which order overruled the defendant's general and special demurrers to count 2 as amended. In the order of December 6, 1947, the court overruled the general demurrers and sustained certain special demurrers to this count. The defendant filed exceptions pendente lite more than twenty days after the date of this order, and therefore we cannot consider these assignments of error.

We construe the allegations in count 2 of the original petition as being an action at law for recovery of damages on account of the defendant's breach of contract, viz., his refusal to convey to the plaintiff a good and marketable title, and not as a petition to recover damages because specific performance was impossible, as provided for in the first part of Code § 37-807. See Mobley v. Lott, 127 Ga. 572 (1) ( 56 S.E. 637); Turman v. Smarr, 145 Ga. 312 ( 89 S.E. 214); Armor v. Stubbs, 150 Ga. 520 ( 104 S.E. 500); Loewus v. Eskridge, 175 Ga. 456 ( 165 S.E. 576); Woodall v. Williams, 176 Ga. 343 ( 167 S.E. 886).

The court in its order on special demurrers struck from the petition two paragraphs which enumerated defects in the defendant's title and alleged that the defendant had refused to make the plaintiff a good and marketable title, and that the defendant had repudiated the contract. This left count 2 in a situation where it alleged the existence of the contract of sale and damages to the plaintiff, but left this count without any allegations of fact as to what constituted a breach of the contract. McDaniel v. Featherstone, 135 Ga. 387 ( 69 S.E. 535). By amendment, the plaintiff added nine paragraphs to this count, which in substance alleged: (a) the defendant does not have a good and marketable title to the described property; (b) the defendant has no title of any kind to the property; (c) the defendant refuses to do any act to establish a good and marketable title; (d) the defendant refuses to convey the title, even though defective; (e) even though the plaintiff has tendered the purchase-money to the defendant despite the defects, and requested compliance with the contract, the defendant has refused to convey title; and (f) the defendant has refused the offer of the plaintiff to bring an action to establish the fact that the defendant had a good and marketable title.

The sales contract in this case was not a contract that absolutely bound the plaintiff to buy or the defendant to sell as of the date of its execution, but performance was subject to the following conditions: (a) the furnishing of a good and marketable title by the defendant; (b) the allowance to the buyer of a reasonable time in which to examine the title; (c) if any defects were found, notice of such defects was to be furnished by the buyer to the seller; (d) the seller will give a reasonable time to correct the defects; (e) such legal papers as necessary to carry out the terms of the contract would be executed and delivered as soon as the validity of the title had been established.

The sale was inchoate, but would become binding upon the seller if within a reasonable time he offered the buyer a good and marketable title. Manning v. Sams, 143 Ga. 205 (2) ( 84 S.E. 451). Where there is an anticipatory breach of such a contract, the vendee has a choice of two remedies: (1) to accept the breach as tendered and sue for damages; or (2) to treat the contract as continuing until the time stated for performance and then sue for specific performance. Gilleland v. Welch, 199 Ga. 341 (1) ( 34 S.E.2d 517). "The contract was not an absolute agreement by the one party to convey a clear title to the land and by the other to buy, but was conditional. It bound the vendor to sell and the vendee to buy and make payment within the time fixed, on condition that the titles were clear. If the titles were not clear, the contract did not include a covenant on the part of the vendor to make them clear, or to procure a clear title. While he might not be heard to set up a defect in his title or his own default in conveying and delivering possession, if the vendee was willing to accept the title as clear and waive any defect, yet the vendor could not require the vendee to accept a title which was not clear, nor could the vendee occupy a position where, under the condition in the contract, he was not bound . . as on an unconditional contract to procure a clear title. . . When the vendee waits until after the expiration of the fixed time and then sues to recover the difference between the price named in the contract for the entire land and the market value thereof and the expenses of examining the title to the land, he must allege that the vendor had a clear title, or at least one which the plaintiff was willing to accept as a clear title." Adams v. Bridges, 141 Ga. 418 ( 81 S.E. 203).

In the original count 2, the breach alleged was the repudiation of the contract to convey to the plaintiff a good and marketable title. These allegations were stricken on demurrer. In his amendment, the plaintiff attempted to allege three acts on the part of the defendant as constituting a breach of the contract: (a) the defendant has no title to the property and refuses to do any act to correct the defect; (b) he refuses to convey the title to the plaintiff in its defective condition; and (c) he refuses either to bring an action or to allow the plaintiff to bring an action to clear up the defects. All of these alleged breaches are inconsistent with the breach alleged in the original petition, and likewise are inconsistent within themselves. If the defendant had no title to the property, and refusal on his part to convey a defective title would not constitute a breach of the contract. Nor would his refusal to bring an action to establish a good and marketable title be consistent with his refusal to convey a defective title. The amendment not only changes the cause of action, but substitutes other alleged breaches which are contradictory to one another. This count as amended failed to allege a cause of action against the defendant, and the court erred in overruling the defendant's demurrers. See, in this connection, Macon Birmingham Ry. Co. v. Walton, 127 Ga. 294 ( 56 S.E. 419); Adams v. Bridges, 141 Ga. 418 (supra); Jenkins v. Lane, 154 Ga. 454 ( 115 S.E. 126); Small v. Peacock, 171 Ga. 475 ( 155 S.E. 754); Adams v. Johnson, 182 Ga. 478 ( 185 S.E. 805).

Judgment reversed. All the Justices concur.