Opinion
17945.
ARGUED JULY 14, 1952.
DECIDED SEPTEMBER 2, 1952.
Specific performance. Before Judge Crow. Dougherty Superior Court. May 24, 1952.
Louis A. Peacock and Farkas, Landau Davis, for plaintiff in error.
Peacock, Perry Kelley and Jesse W. Walters, contra.
1. The alleged parol contract upon which specific performance is sought does not measure up to the rule that the contract must be certain, definite, and clear, and so precise in its terms that neither party can reasonably misunderstand it.
2. In order to authorize a decree for the specific performance of a parol contract for the sale of land, it must appear that the agreement is fair, just, and equitable in all of its terms.
3. Where tender is relied upon to support a parol contract for the sale of land, it must appear that the tender was in full of all amounts due under the contract, and that the tender was unconditional. An offer to pay upon delivery of a properly executed deed is not an unconditional tender.
No. 17945. ARGUED JULY 14, 1952 — DECIDED SEPTEMBER 2, 1952.
Howard Mitchell filed an action against Mrs. Addie B. Morgan, as administratrix of the estate of J. C. Morgan, for the specific performance of an alleged parol contract between the plaintiff and J. C. Morgan, deceased. In substance the petition, as amended, alleged: J. C. Morgan died on June 24, 1948, and the defendant was appointed permanent administratrix of his estate on September 6, 1948. On October 27, 1943, the deceased sold described property to the plaintiff for and in consideration of the sum of $4800, payable at the rate of $1000 per year, the first payment to be due on October 27, 1944, and the last payment of $800 to be due on October 27, 1948; and, as a part of the consideration of the purchase of the property, the deceased "was to paint the house located on said property if such house needed painting before five years expired from the date said property was sold to plaintiff." Possession of the property was delivered to the plaintiff at the time of the sale. At the time of the sale the property had a value not in excess of the sale price of $4800. The plaintiff complied with his contract of purchase, making payments in accordance with the contract, and at the time of Morgan's death he had paid the full purchase price with the exception of possibly $25. After taking possession of the property, the plaintiff built two sheds to the garage, installed an electric pump, fenced the entire tract, and put in several cross fences, fertilized and cultivated the land by growing corn, cane, and garden products thereon, twice painted the house on the inside, repaired the lights, and installed a bathtub in the bathroom and a sink in the kitchen. A few days prior to the death of the deceased, the plaintiff tendered to him the remainder of the purchase price, and requested that deed be executed to the plaintiff by the deceased, who stated that he did not feel physically able to leave his house at that time for the purpose of having the deed prepared, and requested the plaintiff to wait a few days, at which time he would accept final payment and execute the deed. Before this could be done, J. C. Morgan died. The tender was made on or about April 15, 1948, in the amount of $100, which was a balance then due on the purchase price of the property. After the death of J. C. Morgan, the plaintiff requested the defendant, who was his sole heir, to execute a deed to the property, and tendered to her, on or about July 10, 1948, the balance of the purchase price then due, in the sum of $25. She refused to accept the balance of the purchase price and refused to execute a deed to the property. The plaintiff has received a letter from an attorney for the defendant, as administratrix, demanding rent on the property and possession by October 23, 1948. The plaintiff has complied with all of the terms of the agreement entered into between the plaintiff and the deceased on October 27, 1943, and the defendant should be required to execute a deed to the plaintiff to the property described. Unless restrained, the defendant will institute dispossessory proceedings against the plaintiff, having already employed an attorney to take such action.
The prayers were for process, that the defendant be required to execute a deed to the plaintiff conveying title to the property described, and that she be restrained and enjoined from interfering with the possession of the property by the plaintiff.
The trial resulted in a verdict for the plaintiff. The defendant's motion for new trial, as amended, was overruled. The defendant assigned error on this judgment and on her exceptions pendente lite to the overruling of her demurrers.
The parties will be referred to in the opinion as they appeared in the trial court.
1. A petition seeking legal or equitable relief, or both, shall plainly, fully, and distinctly set forth the cause of action. Code, § 81-101; Ewing v. Paulk, 208 Ga. 722 ( 69 S.E.2d 268). A parol contract upon which specific performance is sought must be certain, definite, and clear, and so precise in its terms that neither party can reasonably misunderstand it. Studer v. Seyer, 69 Ga. 125; Hill v. Hill, 149 Ga. 50, 52 ( 99 S.E. 31); Dowling v. Doyle, 149 Ga. 727, 728 (2a) ( 102 S.E. 27). A court of equity will not decree the specific performance of a parol contract for the sale of land where it is not clear that the exact terms of the contract are agreed upon and understood. Sykes v. Reeves, 195 Ga. 587, 592 ( 24 S.E.2d 688).
The first question for determination in the present case is whether or not the petition alleged a contract that should be enforced by a court of equity. On general demurrer the petition will be construed most strongly against the pleader. Allegations essential to the establishment of a contract will never be implied or presumed. They must be distinctly averred, and if not so averred, the petition is subject to general demurrer. Ewing v. Paulk, supra. The court will consider only the sufficiency of the allegations actually made in the petition. Beyond this, it can not properly go. Crowley v. Calhoun, 161 Ga. 354 (3) ( 130 S.E. 563).
Originally the petition alleged that on October 27, 1943, J. C. Morgan (hereinafter referred to as the deceased) sold described property to the plaintiff for $4800, payable at the rate of $1000 per year, and that, as a part of the consideration for the purchase of the property, the deceased "was to paint the house located on said property if such house needed painting before five years expired from the date said property was sold." In response to the special demurrers interposed, these allegations were amended to allege that $1000 would be due on October 27, 1944, and that the last payment of $800 would be due on October 27, 1948.
The petition, as amended, fails to allege whether the deferred payments were represented by notes or any other written evidence of the alleged contract. There is no allegation as to any agreement between the parties as to interest that might become due. If the plaintiff agreed to pay interest on the principal sum from the date of the contract, he would have to comply with this agreement before seeking relief in a court of equity. Perdue v. Young, 154 Ga. 220 ( 113 S.E. 801). If there was no agreement as to the payment of interest, and if the instalments were not promptly paid on the due date, such instalments would bear interest at the rate of 7 percent per annum, since the agreement, although oral, constituted a liquidated demand and would bear interest from the due date thereof. Central of Ga. Ry. Co. v. Central Trust Co. of N. Y., 135 Ga. 472, 499 ( 69 S.E. 708). An allegation that the plaintiff "has complied with all of the terms of the agreement" amounts to no more than a conclusion of the pleader, and is insufficient to aver payment of the alleged purchase price according to the terms and tenor of the alleged contract, when, as here, there are no allegations to show what the terms of the payments were with reference to interest, or that payment was made on or before the due date of the deferred payments, so as to avoid the accumulation of interest. On general demurrer it will be presumed that the plaintiff placed his case in the light most favorable to his cause, and it must be presumed that he did not allege payment on or before the due date of the several instalments since such allegation would not be in accord with the facts.
Counsel for the plaintiff assert in their brief that the oral agreement between the parties provided that the deceased should carry fire insurance on the property and pay the taxes until the purchase price was paid. The petition is silent as to any agreement between the parties relating to insurance on the property, or the payment of taxes. The elements of a contract, to which reference is made by the allegations of the petition, are not clearly and precisely set forth. Whether or not a definite agreement between the parties as to insurance and taxes would be essential to a contract so clear and precise that neither party could reasonably misunderstand it, is a question that is not necessary to the decision in this case.
2. The petition alleges that, at the time of the contract, the property "had a value not in excess of $4800." The allegations of the petition are insufficient to show that the contract was fair, just, and equitable, and in good conscience should be performed, since neither the actual value of the property is alleged, nor the amount the deceased would receive from the sale of the property after deducting from the alleged contract price the expenses alleged to have been assumed by the deceased. Specific performance is an equitable remedy and one which can not be demanded as a matter of absolute right merely by virtue of proving an agreement. It must be made to appear that the contract is fair, equitable, and just. Code, § 37-805; Coleman v. Woodland Hills Co., 196 Ga. 626 ( 27 S.E.2d 226); Jenkins v. Evans, 202 Ga. 423 ( 43 S.E.2d 501); Bullard v. Bullard, 202 Ga. 769 ( 44 S.E.2d 770); Ogletree v. Ingram LeGrand Lumber Co., 207 Ga. 333 ( 61 S.E.2d 480); Hulgan v. Gledhill, 207 Ga. 349 ( 61 S.E.2d 473); Savannah Bank Trust Co. v. Henley, 208 Ga. 34, 36 ( 65 S.E.2d 26).
3. The allegations as to tender do not comply with the rule that, where specific performance of an alleged parol agreement is sought, there must be an unconditional tender of the purchase price. Terry v. Keim, 122 Ga. 43 ( 49 S.E. 736; Martin Smith v. Thompson, 141 Ga. 31 ( 80 S.E. 318); McKown v. Heery, 200 Ga. 819, 821 ( 38 S.E.2d 425).
For each and all of the foregoing reasons the petition failed to allege a cause of action for specific performance of a parol contract for the sale of land. The trial court having erroneously overruled the general demurrers to the petition, the further proceedings were nugatory.
Judgment reversed. All the Justice concur, except Atkinson, P.J., and Almand, J., not participating.