Opinion
17786.
ARGUED FEBRUARY 12, 1952.
DECIDED MARCH 10, 1952. REHEARING DENIED MARCH 25, 1952.
Specific performance. Before Judge Rees. Stewart Superior Court. December 26, 1951.
Ernest C. Britton, for plaintiffs in error.
R. S. Wimberly, contra.
1. An action for specific performance is subject to general demurrer where the contract relied upon is an exchange of telegrams, neither of which discloses the identify of the alleged vendee.
2. A description of land in an alleged contract which is so vague that it fails to identify any particular tract or parcel of land is insufficient to sustain an action for specific performance.
No. 17786. ARGUED FEBRUARY 12, 1952 — DECIDED MARCH 10, 1952 — REHEARING DENIED MARCH 25, 1952.
Ingram LeGrand Lumber Company brought an action for specific performance against Londa Pickett Ogletree (Mrs. G. R. Ogletree), Ina May McAdams, Georgia Ogletree, Louise McElroy, and Ben Ogletree, seeking to enforce an alleged contract for the sale of described lands. On a former appearance of the case in this court ( Ogletree v. Ingram LeGrand Lumber Co., 207 Ga. 333, 61 S.E.2d 480), it was held that the petition lacked necessary averments as to adequacy of consideration, and that the general demurrer to the petition should have been sustained. Before the remittitur from this court was made the judgment of the court below, the plaintiff filed an amendment to the petition, by substituting a new petition, in which it was alleged:
In the year 1949, and prior thereto, the defendants were the owners in fee simple of a described tract of land in Stewart County, Georgia. The described tract was the only land owned by the defendants in Stewart County, Georgia, and was referred to in the correspondence between the parties as the "Lumpkin land," the "Lumpkin place," and the "Stewart County property." At the time of the negotiations alleged, Mrs. G. R. Ogletree was fully authorized by all of the other defendants to sell the property, and all of the defendants were acting together and in full concert, and with the mutual understanding and agreement that any one of the defendants was authorized to sell the property on behalf of all. All the defendants consulted together, and were familiar with the negotiations alleged. On or before August 1, 1949, the defendants listed the property for sale with the Land Realty Company, a real-estate partnership composed of H. Land and J. H. Land, and asked the realty company to secure offers for the property. The defendants furnished to the realty company a plat of the property, which showed the property exactly as described in the petition. This plat was exhibited to the plaintiff. The plaintiff, the defendants, and the realty company knew that, whenever in the negotiations between the parties the property was referred to as the "Stewart County property," or "Lumpkin property," or "Lumpkin place," the land described in the petition was referred to, it being within the knowledge of all parties that this was the only land owned by the defendants in Stewart County, the land being located a short distance from Lumpkin, the county seat of Stewart County. The realty company asked the plaintiff to make an offer on the described property, and the plaintiff authorized the realty company to offer $9000 to the defendants for the property. On September 7, 1949, H. Land, at the direction of the plaintiff, sent the following telegram to the defendant, Ben Ogletree: "Ben Ogletree — Wood Products Corporation — Livingston, Texas — Offered Nine Thousand less commission Lumpkin Place Wire if acceptable. H. Land." The offer referred to in the telegram was the offer made by the plaintiff. The "Nine Thousand" stated in the telegram meant nine thousand dollars, and was so understood by the sender and the recipient of the telegram, this method of expression being the common practice in sending telegrams. The defendants considered this offer among themselves, and on September 9, 1949, the following telegram was sent: "Hez Land, care Land Realty Company, Columbus, Georgia. Retel we accept offer on Lumpkin land you draw up deed and mail to me. All of us will sign and return air mail. Mrs. G. R. Ogletree." On September 12, 1949, at the direction of the plaintiff, Hez Land wrote to the defendant, Mrs. G. R. Ogletree, enclosing the form of a warranty deed between the defendants and the plaintiff, instructing the defendants as to the manner of the execution of the deed. A copy of the letter and the form of deed enclosed is set out in the petition. The description in the deed is substantially the same as that set out in the petition. This letter was received by Mrs. Ogletree on or about September 14, 1951 (1949?), before the offer was withdrawn. On September 22, 1949, the plaintiff was advised by the attorney for the defendants that "all negotiations are terminated," on the ground that the defendants claimed that they had been misinformed as to the true facts regarding their property and the amount of timber thereon, and they refused to comply with their contract of sale, thus making a tender to them of the purchase price unnecessary, as they notified the plaintiff that they would not accept the $9000. The price of $9000 was the fair market value of the property, and the contract was in all respects fair, just, and one which in good conscience should be performed. The plaintiff is engaged in the lumber business and expected to use the land to grow timber on, and there is no way to calculate the amount of anticipated profits. The loss to the plaintiff by the breach of the contract would be irreparable, and the plaintiff has no adequate remedy at law. The plaintiff tenders the purchase price into court.
General and special demurrers of the defendants to the petition were renewed, and the exception here is to the overruling of the demurrers.
The parties will be referred to in the opinion as they appeared in the court below.
1. The writings set forth in the petition in this case are wholly insufficient to constitute a contract for the sale of land. If a contract was made by the parties, it must be found in the two telegrams set out in the petition. The first telegram is from H. Land of the Land Realty Company to Ben Ogletree, as follows: "Offered nine thousand less commission Lumpkin place wire if acceptable." The telegram in reply was by Mrs. G. R. Ogletree to H. Land, stating: "Retel we accept offer on Lumpkin land you draw up deed and mail to me. All of us will sign and return air mail." The purported contract is sought to be enforced by Ingram LeGrand Lumber Company, which company avers that it is the party making the offer referred to in the first telegram.
"Contracts for sale of land, being within the statute of frauds, are required to be in writing, and the writing should in some way show the names of the parties to the contract." Moore v. Adams, 153 Ga. 709, 713 ( 113 S.E. 383, 23 A.L.R. 925); Oglesby Grocery Co. v. Williams Mfg. Co., 112 Ga. 359 ( 37 S.E. 372); F. W. Grand c. Stores v. Eiseman, 160 Ga. 321 ( 127 S.E. 872).
In Moore v. Adams, supra, it was held: "In an action by an alleged vendor for specific performance, where a copy of the alleged written contract for sale of land relied on as foundation for a suit is embodied in the petition, and the paper appears to be signed by persons alleged in the petition to be agents of the vendor, but does not contain the signature of the alleged vendor nor in any way disclose his name, the petition is subject to general demurrer." The facts of the case of Moore v. Adams, supra, make it directly applicable to the present case. In each instance it is the party seeking enforcement who is not named or designated in the alleged contract.
In Fraser v. Jarrett, 153 Ga. 441 ( 112 S.E. 487), cited by counsel for the plaintiff, it was held: "Under our statute of frauds a contract for the purchase of lands need only be signed by the party against whom the contract is sought to be enforced." In the Fraser case, however, the names of both parties were revealed in the writings forming the contract sought to be enforced.
In the present case, the telegrams relied upon as forming the contract nowhere reveal the identity of the alleged vendee. This deficiency in the alleged contract was not cured by the fact that later a deed was submitted to one or more of the defendants, which named the plaintiff as the vendee. The unexecuted deed was not a part of any alleged contract between the parties.
The only consideration alleged in the petition for the purported contract was the mutual promises of the parties. "If mutual promises are relied on as a consideration to support a contract, the obligations of the contract must be mutually binding upon the respective parties." Buick Motor Co. v. Thompson, 138 Ga. 282 ( 75 S.E. 354). Under the allegations of the petition, the plaintiff would not have been bound by the telegram of the realty company, merely stating that an offer had been made.
2. "Specific performance of a contract for the sale of land will not be decreed unless the land which is the subject matter of the alleged sale is clearly identified in the contract." Estes v. Winn. 136 Ga. 344 ( 71 S.E. 470); Clayton v. Newberry, 138 Ga. 735 ( 76 S.E. 63); Durham v. Davison, 156 Ga. 49 ( 118 S.E. 736); Malone v. Klaer, 203 Ga. 291 ( 46 S.E.2d 495). "While it is not necessary that the land be described with such precision that its location and identity are apparent from the description alone, yet the description must be sufficiently clear to indicate with reasonable certainty the land intended to be conveyed. Parol evidence can not be invoked in aid of a vague and uncertain description, but is available to show the application of a description which itself furnishes a means of identification. If the land is so imperfectly and indefinitely described in the writing that no particular tract or lot is designated, parol evidence is not admissible to supply a description." Tippins v. Phillips, 123 Ga. 415 ( 51 S.E. 410).
The only description of the property in the exchange of telegrams between the realty company and the defendants was "Lumpkin place" and "Lumpkin land." The petition shows that the reason the property was designated as the Lumpkin place or land was that it was located near Lumpkin, the county seat of Stewart County. This was not a name by which the place had been known for a number of years, so that it might be located by the introduction of parol testimony. The exchange of telegrams did not even show that it was property owned by the defendants near Lumpkin, and the allegation in the petition that this was the only land owned by the defendants in Stewart County could add nothing to the description in the telegrams. The description is not ambiguous, but is so vague and uncertain that it indicates no particular land. An alleged contract for the sale of land with such uncertain description can not be enforced in a court of equity.
It is the contention of the plaintiff that, even if the description in the telegrams should be held to be too uncertain to be capable of enforcement, this uncertainty was cured by the fact that, after Mrs. Ogletree had sent the telegram of September 9, 1949, in which she instructed H. Land to mail a deed to her for execution by the defendants, a deed describing the property in detail was sent to Mrs. Ogletree. This unexecuted deed could add nothing to the purported contract. Any contract made by the parties must be found in the offer and the acceptance. Compare Lancaster v. Wilson, 151 Ga. 154 ( 106 S.E. 103).
It is unnecessary, in view of the foregoing rulings, to consider other questions raised by the demurrers.
The petition did not state a cause of action for specific performance of a contract for the sale of land, and the court erred in overruling the general demurrers to the amended petition.
Judgment reversed. All the Justices concur.