Opinion
21274.
ARGUED JUNE 13, 1961.
DECIDED SEPTEMBER 8, 1961.
Equitable petition. Fulton Superior Court. Before Judge Alverson.
Scott Walters, Jr., Dan Copland, for plaintiff in error.
Jas. L. Thomason, Alfred A. Rice, contra.
1. A general demurrer asserting that a petition seeking both recovery of damages and equitable relief sets forth no cause of action requires a decision only as to whether the plaintiff, under the allegations of the petition, is entitled to the recovery sought or the relief prayed.
2. Where there is no averment that a clause fixing the maturity date of a note and deed was inserted therein unintentionally or through fraud, accident, or mistake, the remedy of reformation is not available for the purpose of making a new and different contract for the parties.
3. Where both oral and written agreements constitute parts of the same contract, or where the oral agreement, though separate and distinct, varies or contradicts the terms of the written instrument, the oral agreement is unenforceable.
4. Punitive or exemplary damages can never be allowed in cases arising on contracts; and where the petition fails to show an obligation on the part of the defendant to perform an alleged necessary act or that the defendant breached the contract in any particular, then no cause for the recovery of simple damages is set out.
5. The averments of the petition plainly show that the provision of the contemporaneous agreement fixing the due date at another and different time was contradictory and contrary to the provisions of the note and deed.
6. A petition for injunction to restrain the defendants from exercising the power of sale in a security deed was demurrable on the ground that the plaintiff did not offer to do equity by paying the secured debt admittedly due.
ARGUED JUNE 13, 1961 — DECIDED SEPTEMBER 8, 1961.
On April 12, 1960, G. L. Jones filed an equitable action against Central Builders Supply Co., Inc., in the Superior Court of Fulton County. The petition as amended was in three counts. Count 1 alleged that on February 10, 1959, the plaintiff signed a promissory note payable to the defendant in the principal amount of $40,000 bearing interest at the rate of six percent and maturing 120 days after date; that the note was secured by a loan deed to five lots at a stated location in Clayton County, Ga., designated as plaintiff's lots # 1, 2, 3, 4, and 5; that in consideration of the plaintiff giving the note and security the defendant entered into a contract to furnish the plaintiff $40,000 with which to build a house on each of the five lots; that for the purpose of building each house the defendant was to furnish the plaintiff $4,000 in materials and $4,000 in money; that the defendant was to receive in payment the full retail price of the materials and six percent interest on the money; that the Federal Housing Administration had approved the building of the houses and appraised their value when they would be completely constructed, the appraised estimate of each being placed at a named figure; that the defendant was to receive a $200 service charge on each house; that on May 11, 1959, which was just one month and eight days prior to the due date of the note, the first materials to lot # 1 were delivered, and on May 22, 1959, the first money was furnished in the sum of $800; that the defendant furnished $9,499.44 in materials for the construction of the houses on lots # 1 and 2, and supplied the plaintiff with $3,483 with which to pay for labor in the construction of such houses; that the defendant also furnished $324.45 in materials for the construction of the house on lot # 3.
The petition further stated that the parties agreed that the money was to be supplied in instalments, which were termed by the pleader as "draws," at four stages of construction, and in the pleading it was alleged that: "1st Draw Due — when house is subfloored, at which time plaintiff was to receive 20% of the total of $4,000 or $800; 2nd Draw — when house is dried in, sides walled in, utilities roughed in, roof on house, at which time plaintiff was to receive 30% of the total of $4,000 or $1,200; 3rd Draw — when house is bricked, sheet-rocked on the inside, carport and stoop paved with cement and floored, at which time the plaintiff was to receive 30% of the total of $4,000 or $1,200; 4th Draw — when house is completed, accepted and approved by F.H.A. after inspection, at which time the plaintiff was to receive 20% of the total of $4,000 or $800."
The petition further alleged that the houses on lots # 1 and 2 were 80 percent completed and had been since August, 1959, but that the defendant refused to pay the "third draw" on the houses or to furnish any materials or money for the construction of the houses on lots # 3, 4, and 5; that by reason of the defendant's failure to perform its obligations under the terms of the contract, the plaintiff has been unable to complete the construction of the houses. The petition then set out the value of the five lots in question as estimated by the F.H.A. as $6,250 and alleged their market value was $7,500.
The petition then related that the houses on lot #1 and lot # 2 had been sold for $13,000 and $11,700, respectively, subject to their completion, acceptance and approval by the F.H.A. It alleged the cost of building each of the houses, the expense connected with the sale of the same, and estimated that if the sales were consummated the plaintiff would realize a stated amount of the profits.
The petition further stated that the plaintiff had made repeated demands upon the defendant to comply with and perform the contract and that the defendant had refused to comply with the terms of the agreement; that on March 15, 1960, plaintiff received a notice from defendant's attorney demanding as principal and interest $16,725.67, together with $1,672.56 attorney's fees, and notifying him that the first Tuesday in May, 1960, defendant would, under the provisions of the security deed, advertise and sell the lots described in the same together with the improvements on the lots; that there was a difference of $3,418.78 in the amount of materials and money the defendants furnished the plaintiff and the amount demanded in the notice; that the plaintiff had tried to persuade the defendant to rectify the discrepancy and to perform the contract according to its terms.
The petition further alleged: that the defendant corporation had instigated foreclosure proceedings against the plaintiff's security without just cause by advertising the same for sale in a foreclosure proceeding; that the foreclosure proceeding was brought about by the defendant's failure to comply with the terms of the original agreement and by no fault on the part of the plaintiff, the plaintiff being ready, willing, and able to complete his end of the contract upon performance by the defendant; that the assets of the defendant corporation were being recklessly liquidated and divided by the two principal officers of the corporation without the consent of the plaintiff.
Count 1 contained a prayer for specific performance of the contract therein set out, that the foreclosure of the security deed be enjoined, and that, if no other form of relief was obtained, the plaintiff recover of the defendant a stated sum as damages.
The second count was substantially the same in its averments and prayer as the first, except it contained a prayer for a larger amount of damages. Count 1 was subsequently amended by adding the allegations: "Defendant under said contract was to furnish payroll money and all material for the construction of these houses, payroll as specified and material as needed and requested. Defendant was to receive all sums due it under said contract at the time of the closing of each house, at which time defendant was to release the house to the purchaser. The term one hundred twenty days from the date of signing originally inserted in said note and security deed was arbitrarily selected by the parties as a date when they felt that the houses, or at least one or two of them, would probably be completed. Said date had nothing whatsoever to do with the time of payment, but was simply inserted in accordance with the custom of the trade and the prior practice of defendant on similar transactions with other individuals, so that the public would have some idea of the maturity time of the loan. Said advances were at all times a construction loan for the construction of the houses on these lots and were to include no other accounts between the parties. Plaintiff verily believes that this contract was in writing and was retained by defendant, but defendant states that no written contract exists."
The prayers of count 1 were stricken and in their stead the amendment substituted the prayer: "that process issue as by law provided and that rule nisi issue directing the defendant to show cause why it should not be restrained and enjoined from proceeding with the foreclosure and that the loan deed and note be reformed by this court to provide that the same shall be due at the time of the closing of the sales of the houses built on said lots."
The prayers of count 2 were amended to read: "that the agreement between the parties be reformed by correcting the due dates in said loan deed and note and that the defendant be compelled to specifically perform under the terms of the agreement between the parties and upon their failure to do so." A count 3 seeking punitive damages was also added by amendment.
The petition as originally drawn and as amended contained no prayer for general relief.
The defendant moved to dismiss the petition on the grounds: that none of the counts set out and stated a cause of action against the defendant, and that the original petition did not contain enough by which to amend, and that plaintiff sought as to counts 1 and 2 of the petition to convert his original cause of action on an alleged contract to an action seeking reformation. The motion was sustained and judgment dismissing the petition was entered. The plaintiff excepted and brought the case here for relief.
1. A general demurrer asserting that a petition seeking both recovery of damages and equitable relief sets forth no cause of action requires a decision only as to whether the plaintiff, under the allegations of the petition, is entitled to the recovery sought or the relief prayed. Copeland v. Cheney, 116 Ga. 685, 687 ( 43 S.E. 59).
2. The petition seeks to obtain a decree that the promissory note and security deed given by the plaintiff to the defendant be reformed so as to delete from those instruments the clause providing that the date of their maturity was 120 days after the date they were executed. There is no averment that the clause fixing the maturity date of the note and deed was inserted therein unintentionally or through fraud, accident, or mistake. On the contrary, the petition relates that the parties intentionally drafted the note and deed to stipulate that they would fall due 120 days after the date of their execution.
In the case of Deck v. Shields, 195 Ga. 697, 701 ( 25 S.E.2d 514), is the pronouncement: "Reformation as applied to a contract is a remedy cognizable in equity for the purpose of correcting an instrument so as to make it express the true intention of the parties, where from some cause such as fraud, accident, or mistake, it does not express such intention. The remedy is not available for the purpose of making a new and different contract for the parties, but is confined to establishment of the actual agreement." A similar holding is Crawford v. Schaefer, 181 Ga. 221 ( 181 S.E. 587). Also see Smith v. Robinson, 214 Ga. 835, 836 ( 108 S.E.2d 317).
The petition failed to allege cause for reformation of the note and deed or grounds for specific performance of the contract as prayed.
3. The petition tacitly admitted that the plaintiff would be unable to positively allege that any part of the agreement, except the note and deed, were in writing, and in his brief filed in this court the plaintiff admits the agreement was verbal. Hence, the clause of the parol agreement providing that the note and deed would mature at a different date than expressed by their terms was subject to the rule: "Where both agreements constitute parts of the same contract, or where the oral agreement, though separate and distinct, varies or contradicts the terms of the written instrument, it is unenforceable." Cottle v. Tomlinson, 192 Ga. 704, 712 ( 16 S.E.2d 555); Stonecypher v. Georgia Power Co., 183 Ga. 498 ( 189 S.E. 13); Miller v. Shaw, 212 Ga. 302, 308 ( 92 S.E.2d 98).
4. The petition undertook to set forth a cause for the recovery of simple and punitive damages. The claim of both species of damages is predicated upon the contention that the defendant breached the contract. "Exemplary damages can never be allowed in cases arising on contracts." Code § 20-1405. The punitive damages were not recoverable, under the rule announced in: Chattanooga, Rome Columbus R. Co. v. McLendon, 86 Ga. 517, 524 ( 12 S.E. 941); Hadden v. Southern Messenger Service, 135 Ga. 372, 374 ( 69 S.E. 480); Georgia Kaolin Co. v. Walker, 54 Ga. App. 742, 746 ( 189 S.E. 88).
In order for the plaintiff to recover any damages it was necessary that the petition show performance of the contract by the plaintiff ( Brown v. Hayes, 33 Ga. 136 (1) [Supplement]; Prater v. Sears, 77 Ga. 28, 34; Lee v. Lee, 191 Ga. 728, 734, 13 S.E.2d 774), or that performance on his part was for valid reason excused; that the defendant breached the contract ( McDaniel v. Featherstone, 135 Ga. 387, 69 S.E. 535; Douglas v. Langford, 206 Ga. 864, 869, 59 S.E.2d 386), and damage was thereby caused the plaintiff.
The plaintiff admits, and from the averments of the petition it is apparent, that he did not discharge the obligation assumed under the terms of the contract. However, it is alleged that his failure to carry out the contract was through no fault of his, because the defendant breached the contract and such breach rendered performance on the plaintiff's part impossible.
The breach of the contract attributed to the defendant was a failure to furnish money and deliver materials in the quantities and at the time provided by the contract for the building of the five houses on plaintiff's lots # 1, 2, 3, 4, and 5. The petition related that, due to delay in furnishing the materials and money and the refusal by the defendant to supply either money or materials, the plaintiff was unable to complete construction of the houses; and that, as a result, he could not sell the houses and from the proceeds of the sale pay the defendant so much as might be due for the money and materials as were already furnished. It was alleged that under the terms of the contract the defendant was to furnish the plaintiff $20,000 in materials and the same amount in money to build the five houses; $4,000 in money and $4,000 in materials were to be furnished for the building of each house.
The materials were, according to the petition, to be delivered as "needed and requested." The money was to be advanced on an instalment basis at stipulated stages of construction: when the house was subfloored, at which time the plaintiff was to receive 20 percent of $4,000; when the house was dried in, sides walled in, utilities roughed in, roof on the house, at which time the plaintiff was to receive 30 percent of $4,000; when the house was bricked, sheet rocked on the inside, carport and stoop paved with cement and floored, at which time the plaintiff was to receive 30 percent of $4,000; when the house was completed, accepted and approved by the F.H.A. after inspection, at which time the plaintiff was to receive 20 percent of $4,000. The petition alleged that at the time the contract was entered into the plaintiff requested immediate delivery of the materials. It was also related that only $324.45 of materials were delivered to lot # 3 and none to lots # 4 and 5. However, there was no averment that construction was even begun on the three lots or that material was needed for building on any of them. The actual complaint made by the petition was that, after furnishing $3,483 in money and $9,499.44 in building materials for the construction on lots # 1 and 2, the defendant refused to pay $1,200 which would be due on the "3rd Draw," i.e., when the house was dried in, sides walled in, utilities roughed in, and the roof on the house.
The petition alleged that the houses on lots # 1 and 2 were 80 percent complete and had been since August, 1959, but there was no averment that the defendant would be under any obligation to pay the alleged "3rd Draw" at that time. The houses might well be 80 percent complete and still there be no compliance by the plaintiff with the requirement in reference to the "3rd Draw."
No obligation of the defendant to advance the $1,200 at the time it was demanded nor at the time the suit was filed was alleged. The petition failed to show that the defendant breached the contract in any particular, or prevented the plaintiff's performance of the same. Therefore no cause for the recovery of simple damages was set forth.
5. Counts 1 and 2 of the amended petition alleged that there was an agreement entered into by the parties contemporaneously with the execution of the promissory note and security deed, and that such agreement, the note and deed together constituted the contract under which the five houses were to be constructed. The agreement prescribes the amount of materials and money the defendant would be required to supply for the construction of the houses, the conditions and terms under which the materials were to be delivered, and the money advanced. Its provisions, as related to the matters referred to, were compatible and consistent with the provisions of the note and deed. However, according to the petition, the agreement stipulated that the note would not become due or the security deed subject to foreclosure 120 days after the date on which the instruments were executed, but only when the five houses were completely built and had been sold. There was an express stipulation contained in both the note and deed that they would mature 120 days after they were executed; so, obviously, the provision of the contemporaneous agreement fixing the due date at another and different time was contradictory and contrary to the provisions of the note and deed.
6. The petition prays that the defendant be enjoined from exercising the power of sale contained in the security deed previously discussed in this opinion. The alleged grounds of injunction are: that the defendant failed to furnish the full amount of $40,000 to be used by the plaintiff in constructing the five houses, that the $40,000 constituted the sole consideration for the deed and the note it was made to secure; that the building contract was entire, not severable, and that failure on the defendant's part to supply the full amount of money and materials he was obligated to deliver and advance under the terms of the contract barred his right to recover the amount that was advanced through the foreclosure of the security deed.
We have ruled that the averments of the petition did not show a breach of the contract on the part of the defendant. The ruling disposes of the grounds of injunction relative to the defendant's failure to abide by and comply with the terms of the contract.
The petition sets out as another ground of injunction that the defendant only furnished an aggregate of $13,306.89 in money and materials, but is demanding the sum of $16,725.67 in satisfaction of the note and security deed. No tender of the $13,306.89 is alleged. The rule is as enunciated in Latimer v. Lyon, 177 Ga. 888 (1) ( 171 S.E. 562): "A petition for injunction to restrain the defendants from exercising a power of sale in a security deed was demurrable on the ground that the plaintiff did not offer to do equity by paying the secured debt admittedly due." In addition see Poulk v. Cairo Banking Co., 158 Ga. 338, 342 ( 123 S.E. 292); and Auld v. Cobb Exchange Bank, 204 Ga. 729, 731 ( 51 S.E.2d 635).
The right of the plaintiff will not be prejudiced or injustice done him by the property described in the security deed being sold under the power of sale, because the defendant will be permitted to retain only so much of the proceeds of the sale as may be collectible under the provisions of the deed and the note.
Judgment affirmed. All the Justices concur.