Opinion
38272.
DECIDED MAY 2, 1960. REHEARING DENIED MAY 11, 1960.
Action for damages for breach of contract. Fulton Civil Court. Before Judge Camp. February 15, 1960.
Charles W. Anderson, Melvin Pazol, for plaintiff in error.
R. E. Fendler, de Give Fendler, contra.
1. A contract for the sale of realty signed by the purchaser and the seller which describes the property to be sold as, "all that tract of land in Atlanta, Fulton County, Georgia, being improved property located at 126 Ashby Street, S.W., according to the present system of numbering houses in the City of Atlanta; being a 2-story, 14-room frame dwelling," and which sets forth therein the purchase price to be paid by the buyer and the terms of the sale was a binding and enforceable contract for the sale of the described premises, and was not unenforceable on account of vagueness or uncertainty in the description of the property sold. The description furnished a sufficient key by which the location and extent of the property sold could be ascertained, and the petition seeking to recover damages for the breach of the contract was not generally demurrable on account of any insufficiency in the description of the property set forth in the contract. Bush v. Black, 142 Ga. 157 (1) ( 82 S.E. 530); Boney v. Cheshire, 147 Ga. 30 (3) ( 92 S.E. 636); Willingham Loan Trust Co. v. Moore, 160 Ga. 550 (4), 555 ( 128 S.E. 751); Petretes v. Atlanta Loan Trust Co., 161 Ga. 468 (1) ( 131 S.E. 510). See also, Singleton v. Close, 130 Ga. 716 (2), 722 ( 61 S.E. 722), Manning v. Mallard, 144 Ga. 9 (1) ( 85 S.E. 1039), King v. Brice, 145 Ga. 65 (1) ( 88 S.E. 960), and Jones v. Fuller, 25 Ga. App. 89 (1b) ( 102 S.E. 550).
2. The petition was not otherwise generally demurrable. The mere fact that the contract sued on provided that, in the event the seller was unable or failed or refused to convey a marketable title, the seller should pay the broker's commission and the broker would return the earnest money to the purchaser, would not preclude the purchaser from recovering from the seller any damages occasioned by the failure of the seller to go through with the contract.
3. It follows that the trial judge erred in sustaining the general demurrers and in dismissing the petition.
Judgment reversed. Gardner, P. J., Townsend and Frankum, JJ., concur.