Opinion
38900.
DECIDED JUNE 20, 1961. REHEARING DENIED JULY 11, 1961.
Action on contract. Fulton Civil Court. Before Judge Camp.
Robert W. Spears, Wm. C. Grant, for plaintiffs in error.
Woodruff, Latimer, Savell, Lane Williams, Benj. B. Blackburn, III, contra.
1. Where parties enter into a contract for the purchase and sale of real estate which contract provides that the sale shall be consummated on a date certain, the subsequent "agreement" of the parties to the instrument to extend the time for closing, nothing else appearing, operates as a waiver by the seller of his right to have strict enforcement of the terms of the contract as to the date for closing the sale. Jordan v. Rhodes, 24 Ga. 478; Ellis v. Bryant, 120 Ga. 890 ( 48 S.E. 352); Eaton v. Harwood, 198 Ga. 240 ( 31 S.E.2d 473); Jackson v. L. S. Brown Co., 86 Ga. App. 310 ( 71 S.E.2d 521).
2. Accordingly, where the copy of the contract attached to the petition recites that the buyer has paid to the seller the sum of $1,200 as earnest money, and that in the event the sale is not consummated for reasons other than the default of the buyer, the earnest money is to be refunded to the buyer; and, where the petition alleges that the term for the performance of the contract was mutually extended by the parties and that thereafter the defendant seller sold the property, which was the subject matter of the contract of sale, to a third party, thus rendering performance of the contract by the defendant seller impossible, the petition will on general demurrer be construed as a simple action on the contract to recover the earnest money under the provision of the contract referred to. The petition was not subject to general demurrer and the trial court did not err in overruling the general demurrer.
3. When the petition is viewed in the light of the ruling made in the preceding headnote, none of the special demurrers filed by the defendant is meritorious. It follows that the trial court did not err in overruling the special demurrers.
Judgment affirmed. Nichols and Eberhardt, JJ., concur.