Opinion
38075.
DECIDED MARCH 9, 1960. REHEARING DENIED MARCH 23, 1960.
Complaint. Fulton Civil Court. Before Judge Camp. November 4, 1959.
R. B. Pullen, for plaintiffs in error.
McCurdy, Candler Harris, Claude Hambrick, contra.
An option for the purchase of land is such a contract for the sale of lands or an interest in or concerning them as is required to be in writing and signed by the promissor sought to be bound under Code § 20-401 (4). A petition which shows merely that the plaintiffs on February 26, 1959, signed an option reciting a consideration of $400 by which they agreed to sell the defendant a certain described piece of property at a purchase price of $40,700 at any time within 90 days; that 15 days later they were notified by the defendant that it did not desire to purchase the land; that the offer was at no time accepted in writing by the defendant, no further act by either party was being done in execution of the option contract, there was no such acceptance of the option by the defendant as to render it liable for the $400 consideration recited therein. The petition showing that the contract attempted to be sued upon was within the statute of frauds, the trial court properly dismissed it on general demurrer.
DECIDED MARCH 9, 1960 — REHEARING DENIED MARCH 23, 1960.
Murray L. Florence and J. B. DeFoor, executors of the estate of the deceased, Mrs. Emma Mundy, filed a suit in the Civil Court of Fulton County against a corporation, the Rankin-Whitten Realty Company, hereinafter called the defendant. We shall hereinafter refer to the executors as the plaintiffs. The petition alleges that a duly authorized agent of the defendant approached the plaintiffs and submitted a prepared option to buy certain real estate which belonged to the estate of the deceased; that the plaintiffs were offered $400 for the execution of the option; that the plaintiffs accepted the offer and signed the option which gave the defendant the privilege of purchasing the land described in the option; that while the option recites a consideration of $400 and acknowledges receipt of the money, the money was not paid at the time of the execution of the option, nor has it ever been paid, although demand has been made for payment and it is alleged that the defendant fails and refuses to pay it; that on March 13, 1959, the defendant "canceled" the option and informed the plaintiffs that further negotiations were at an end.
Subsequently the plaintiffs filed suit against the defendant for the recovery of the $400 agreed on in the option, alleging the facts as set out hereinabove, to which the defendant filed demurrers. The trial court sustained the demurrers and dismissed the petition. It is on this judgment that the case is here for review.
Under the authority of Robinson v. Odom, 35 Ga. App. 262 (4) ( 133 S.E. 53) and citations, an option for the purchase of land is a contract "for the sale of lands or any interest in or concerning them" within the meaning of the statute of frauds (Code § 20-401 (4)) and accordingly to make the obligation "binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized."
In this action to recover $400, the recited consideration for a written option agreement signed only by the executors of the decedent owner of the land in question, the defendant charged with the promise or obligation to pay the $400 neither paid the $400 recited as having been paid, nor did he sign any agreement to pay that sum. Thus, by no means known to the law did he accept what is in its present form a mere offer to sell an option. Since he is the promissor sought to be charged, he can not be held to his verbal promise. Execution by payment or part payment would have shown acceptance of the offer and would have removed the transaction from this provision of law, but there was none. No such "part performance of the contract as would render it a fraud on the party refusing to comply" is shown for the reason that the plaintiffs fail to show any adverse consequences to themselves between February 26, 1959, when the ninety-day option was orally granted and March 13, 1959, when the offer was rescinded by the defendant, such as would render it a fraud upon them not to compel a performance. They do not allege that their plans regarding the property were in any way changed, or that they would have made any other use of the property or any attempt to sell it to another had they not considered the option in effect during this two-week period, and they have accordingly not been injured or defrauded in any way.
In Black v. Maddox, 104 Ga. 157 ( 30 S.E. 723) the offer to sell or option which was signed by the promissor sought to be bound was accepted by the promisee, or rather his assignee, within the time limited and a tender of full performance was made. Since the tender of the full purchase price was made before the option was withdrawn, it was held that as of the time of such tender it became a completed contract. In Southern Bell Tel. c. Co. v. Harris, 117 Ga. 1001 ( 44 S.E. 885), the instrument was signed only by the grantor of the easement for the stringing of telephone wires who thereafter sought to prevent its execution on the ground, among others, of failure of consideration, the expressed consideration being $1.00. The statute of frauds is not discussed in this case, but it clearly appears that the telephone company had entered upon the land, was in process of erecting the lines when interfered with, and that there was accordingly such part performance of the contract by it as to remove the contract from the statute of frauds. There the grantor, and not the telephone company, was the "promissor sought to be charged."
In each of the above cited cases the promissor had, by means of a written option signed by himself, offered to sell, and in each the offer was accepted: in the first case by tender of the full consideration, and, in the second, by entry upon the land and part performance of the contract. The promissor sought to be bound had signed the instrument and the opposite party had accepted the offer by performance or part performance. In the present case the promissor sought to be bound signed no written instrument and did nothing in performance of the contract, although it procured the offer. Neither was the promisee induced to do anything in performance of the contract which it would not otherwise have done. For the defendant here to have enforced the contract, under the above cited cases, it would first have had to tender to the plaintiffs, whose offer was in writing, full performance by payment of the consideration named in the option. The plaintiffs' act in signing the option and delivering it to the defendant, no consideration being received and no written assent of the defendant being obtained, amounted to no more than an offer of the option, and the defendant, before anything further was done by either party, notified the plaintiffs that it no longer desired the option. The plaintiffs seek to bind the defendant on its oral promise to pay the $400 consideration for the option, but the promise, to be enforceable as against them should have been reduced to writing by them, or else the plaintiffs should have shown such performance on their own part as would have rendered it a fraud for the defendant to refuse to comply.
The trial court correctly held that the contract sued upon was a contract for the sale of lands or an interest in or concerning them, and that the obligation of the defendant, being in parol, was unenforceable as within the statute of frauds. The petition was properly dismissed on general demurrer.
Judgment affirmed. Townsend and Carlisle, JJ., concur.