Opinion
20039.
ARGUED APRIL 15, 1958.
DECIDED MAY 7, 1958. REHEARING DENIED JUNE 4, 1958 AND JUNE 16, 1958.
Specific performance. Fulton Superior Court. Before Judge Alverson. January 23, 1958.
Haas, Holland Blackshear, for plaintiffs in error.
Moise, Post Gardner, contra.
For the reasons given in the opinion, no valid contract was entered into by the plaintiff and the defendant, and the trial court did not err in sustaining the defendants' general demurrer and in dismissing the petition.
ARGUED APRIL 15, 1958 — DECIDED MAY 7, 1958 — REHEARING DENIED JUNE 4, 1958 AND JUNE 16, 1958.
The plaintiff in error, J. Kurt Holland, brought his petition in Fulton Superior Court, suing for the use of certain named parties, against Riverside Park Estates, Inc., and Corkin Enterprises, a partnership composed of Joseph Z. Corkin, Alvan R. Corkin and Herbert I. Corkin. In count 1 petitioner prays for reformation and specific performance of an alleged contract of purchase and sale of described real estate, between himself as purchaser and the defendants as sellers, and in count 2, reformation and damages. To an order of the trial court sustaining a general demurrer to both counts and dismissing the petition, the plaintiff in error excepts.
The petition alleges that the plaintiff made a written offer to purchase certain realty from the defendants which offer defendants accepted. The written offer in question provides in substance that J. Kurt Holland, agent, agrees to buy, and Corkin Enterprises, Inc., agrees to sell, through Weyman Company, brokers, described realty for a consideration of $125,000 and that $1,000 thereof was paid as earnest money by the purchaser at the time the offer was made; that the seller would furnish marketable title and convey the property by warranty deed; that the sale would be consummated within 45 days from acceptance by the seller, with the purchaser having the option to extend the time if necessary to perfect title; that seller would be responsible to Weyman Company for its commission; that "This contract constitutes the sole and entire agreement between the parties and no modification hereof shall be binding unless attached hereto and signed by each; and no representations, promises or inducements shall be binding upon either party or the broker, except as herein stated. This instrument shall, when signed by the purchaser, be regarded as an offer by the purchaser to the seller and is open for acceptance by the seller until 3 o'clock, p. m. on the 5th day of July, 1957, by which time written acceptance of such offer must have actually been received by the purchaser. Upon receipt of written acceptance by the purchaser within the time specified then this instrument shall become a mutually binding contract between the parties". The contract was signed by J. Kurt Holland, agent, as purchaser and delivered to the broker, Sam Weyman of Weyman Company.
The petitioner relies upon certain letters, telegrams and the actions of Sam Weyman as constituting an acceptance of the offer by the property owner. Respecting this the petition alleges in substance the following: Upon receipt by Weyman (defendants' agent) of the written offer from the purchaser, Weyman called A. R. Corkin in Massachusetts by telephone. A. R. Corkin is vice-president and general manager of Riverside Park Estates, Inc., and had listed the property with Weyman for sale. Weyman read and described all the provisions of the written offer to A. R. Corkin, and Corkin orally agreed by telephone that the offer should be accepted and authorized Weyman to accept it. They further agreed in the telephone conversation that Weyman would transmit the offer by telegram to Corkin and that he in turn would accept by telegram. In accordance with the agreement, Weyman, at 4:14 p. m. on July 2, 1957, sent the following telegram to Corkin: "Deposit on hand have firm offer $125,000 cash, $7500 commission, for balance Chattahoochee Plantations property as per Map L W Decelle and following lots being included in purchase price: Paper Mill Road Block C Lots 1-4-6-7-8 Block D Lots 1-2-3- 4-10-12 Block B Lots 3-5-6 Block E Lots 1-3 Johnson Ferry Road Block A Lots 6-7 Sherwood Lane-Forrest Lane Block D Lots 8-9 Sam Weyman". Corkin, in turn, at 5 p. m. on the same day sent Weyman the following telegram: "Confirming your wire of July 2d 4:14 pm Atlanta offer acceptable closing to be within 45 days A R Corkin." The petition then alleges that "Upon receipt of the telegram. . . Sam Weyman did in writing accept the written offer . . . by dating, signing and executing the written acceptance typed on the offer . . . as follows:
`The within and foregoing proposition is hereby accepted.
This the 5th day of July, 1957.
________________________________
(Seller) Weyman Company By Samuel M. Weyman (Broker)'"
that Weyman gave written acceptance of the offer to the offeror by writing and mailing to him on July 2, 1957, the following letter: "Mr. J. Kurt Holland, First National Bank Building, Atlanta 3, Georgia. Dear Mr. Holland: Your offer to purchase the Corkin property has been accepted. Signed contract will be forwarded you shortly. Yours very truly, /s/ Sam M. Weyman"; and that this letter was actually received by Holland before 3 p. m. on July 5, 1957.
The petition alleges that on July 2, 1957, Weyman forwarded the contract to A. R. Corkin asking that he sign it, retain one copy, and return the other to him; that the contract was never returned by Corkin; and that on August 14, 1957, Joseph Z. Corkin, acting as president of defendant Riverside Park Estates, Inc., came to Atlanta and denied to petitioner that the contract had ever been signed or that any contract had existed for sale of the premises to petitioner.
The defendants assert a number of reasons in support of their contention that no binding contract was consummated between the purchaser and the owner of the realty, Riverside Park Estates, Inc. In our opinion the petition fails to establish an acceptance by the seller of the offer to purchase so as to effect a contract between the parties, and for this reason the trial court properly sustained the general demurrer to the petition.
As shown in the statement of facts above, the offer submitted by petitioner provided that the offer would be open for acceptance by the seller until 3 p. m. on July 5, 1957, "by which time written acceptance of such offer must have actually been received by the purchaser," and that "upon receipt of written acceptance by the purchaser within the time specified then this instrument shall become a mutually binding contract between the parties." Under the allegations of the petition no written acceptance of the offer was actually received by the purchaser prior to 3 p. m. on July 5, 1957, or at any other time. While the petition alleges that Corkin orally agreed by telephone with Weyman that the offer should be accepted and authorized Sam Weyman to accept the same, aside from the requirement of the statute of frauds that contracts for the sale of land must be in writing, the offer itself required written acceptance, and any authority for Weyman to accept would have to be in writing. Code § 4-105; Byrd v. Piha, 165 Ga. 397 ( 141 S.E. 48); Dover v. Burns, 186, Ga. 19(4) (196 S.E. 785). No written acceptance of the offer was ever placed in the hands of the purchaser by either Weyman or Corkin. Weyman's letter of July 2 merely notified Holland that "Your offer to purchase the Corkin property has been accepted," and further stated that "Signed contract will be forwarded to you shortly." This did not constitute placing a written acceptance of the offer in the hands of the purchaser. It was nothing more than a notice that the offer had been accepted, and the statement that "Signed contract will be forwarded to you shortly," indicates that this letter did not purport to be an acceptance of the offer, but on the other hand that the offer would be accepted by the signed contract.
The allegation that upon receipt of Corkin's telegram Weyman did in writing accept the written offer by dating, signing and executing the written acceptance quoted in the statement of facts above is of no consequence, because, in the first place, it was dated July 5, 1957, and notice of that as an acceptance could not have been given in the letter of July 2, three days prior thereto, and secondly, the line over the word "Seller" is blank and the owner's name nowhere appears. The signature "Weyman Company by Samuel M. Weyman," could amount to nothing more than an acceptance by him personally. Furthermore, it is not alleged that this purported written acceptance was ever delivered to the purchaser.
Written acceptance by the seller, or by an agent duly authorized to act for him, under the facts alleged has never been delivered to the purchaser, and therefore there has been no acceptance of the offer within the terms of the contract. The seller was authorized to rely upon the terms of the contract that there would be no mutually binding contract until written notice of his acceptance, when actually given, was placed in the hands of the purchaser. The seller did not himself deliver to the purchaser written acceptance of the offer nor did he authorize his agent Weyman to do so, and his agent Weyman did not actually do so.
There is no merit in the contention of the plaintiff in error that the seller by his silence ratified the acceptance of the contract by Weyman, because Weyman, as pointed out, never delivered an acceptance to the purchaser. There was no acceptance of the contract by seller to ratify. The request by Weyman of the purchaser to pay an additional $9,000 to Weyman did not constitute an estoppel of the seller. The petition does not allege that Corkin or any other authorized agent of the owner of the property authorized or directed Weyman to secure this additional payment, or that the payment was made to the owner, or that the owner knew anything about it.
Since the petition failed to establish that there had been an acceptance of the purchaser's offer as provided by the terms of said offer, the trial court properly sustained the defendant's general demurrer and dismissed the petition.
Judgment affirmed. All the Justices concur, except Duckworth. C. J., who dissents.
I dissent because in my opinion the acceptance of the additional payment of $9,000 and its retention constitutes an estoppel as against the seller.