Opinion
34549.
DECIDED APRIL 21, 1953.
Action on contract. Before Judge Craigmiles. Thomasville City Court. January 5, 1953.
C. E. Hay, for plaintiff in error.
Jesse J. Gainey, E. P. McCollum, James T. Gainey, contra.
The amendment to the answer set forth an issuable defense to the plaintiff's demand, and the trial court did not err in overruling the general and special demurrers interposed thereto by the plaintiff. The verdict and judgment for the defendant, based on the allegations of the amended answer, were not contrary to law.
DECIDED APRIL 21, 1953.
E. H. Peebles brought suit, in the City Court of Thomasville against Robert E. Chastain, to recover $1,000. The plaintiff alleged that, on December 1, 1950, he entered into a contract with the defendant, whereby the defendant was to obtain and convey to him on or before March 1, 1951, an "insurable" title to certain described lands, known as the Arch Watson place, for $11,500, the plaintiff paying to the defendant $1,000 as earnest money, with the provision that, if the defendant failed to deliver title on or before March 1, 1951, same would be refunded to plaintiff and, if the plaintiff failed to accept such title, such money would be forfeited. The plaintiff set up that the defendant failed to deliver such title to him on or before said date, and that he was entitled to have said $1,000 refunded, which the defendant had failed and refused to do. Attached to the petition was a copy of the contract. The defendant demurred to the petition, and to the judgment overruling his demurrer the defendant excepted to this court, where the judgment of the trial court was affirmed. See Chastain v. Peebles, 85 Ga. App. 274 ( 69 S.E.2d 105), where the substance of the petition is set forth.
When the case reached the trial court, the defendant amended his answer and alleged that the time limit for compliance with said contract had been waived by the parties because: (1) upon execution of the contract the plaintiff went into possession of the land; (2) the defendant procured title to said land in himself in accordance with the contract in February, 1951, and during the last week of that month tried to get in touch with the plaintiff to deliver to him such title and comply with his obligation under the contract, but the plaintiff was in Florida and the defendant could not reach him, and on the last day of February, the defendant tried to get in touch with the plaintiff "to comply with the terms of said contract, and the plaintiff was" in Florida "and defendant could not present said title to him"; (3) on March 2, 1951, the plaintiff returned to Thomasville, and the defendant got in touch with him "to tender such title and close said sale; and plaintiff then and there told defendant that he was not ready to close the sale under said contract and take deed to said land," and "defendant told plaintiff that he was willing to give plaintiff a few more days in which to close said transaction"; (4) on said date neither party raised any question as to the date limit of March 1, 1951, and the plaintiff continued in possession of said land; (5) about a month later the plaintiff informed the defendant that he was not going to buy the land and asked him to return the $1,000 to him, and about this time the plaintiff vacated said land; (6) the plaintiff was without the State on March 1, 1951, and it was the plaintiff's fault that said contract was not complied with on that date, and he did not surrender possession thereof but continued in possession; and (7) under the facts alleged, the plaintiff waived the time limit of March 1, 1951, for compliance with the contract, and thereafter refused to accept title to the land as contracted for, and he is not entitled to recover any amount from the defendant. The defendant amended his amendment and alleged "that he procured insurable title to said lands on February 27, 1951 . . . into himself in accordance with the requirements of said contract."
The plaintiff demurred to said amended answer: (1) because it nowhere appears that the defendant had acquired either a policy of title insurance or an insurable title at any time prior to March 1, 1951; (2) because the paragraphs of the amendment with reference to the plaintiff's possession should be stricken because the nature of such possession is not shown, and it does not appear that there were any improvements on the land or whether such possession carried with it anything more than the privilege of hunting thereon, which could not exist after the season was over; (3) because the paragraphs thereof with reference to the defendant's inability to deliver title because the plaintiff was absent from Georgia should be stricken, in that no reason is set forth to show why the defendant did not or could not have reached the plaintiff by mail or by telephone if he desired to contact the plaintiff, and because no sufficient excuse is set forth to excuse the defendant from having failed to deliver an insurable title to the land in question as he was obligated to do; (4) because the allegations with reference to waiver of the time limit are mere conclusions without sufficient facts to show any such waiver; and (5) because said amended answer sets forth no defense as against the petition.
The trial judge overruled the above demurrer on each ground thereof, and the case proceeded to trial and resulted in a verdict for the defendant. The plaintiff excepts directly to this court, assigning error on the overruling of his demurrer and on the final verdict and judgment because of the antecedent error in the ruling on said demurrer.
The decision of this court in Chastain v. Peebles, 85 Ga. App. 274 ( 69 S.E.2d 105), fixed the law of this case so far as the petition is concerned and holds that same sets out a cause of action. The defense sought to be set up seems to be that, on March 1, 1951, and on the day prior thereto, February 28, 1951, the plaintiff was not in Georgia but in Florida, and the defendant avers that he could not get in touch with the plaintiff to deliver title to said land to him, and that he saw the plaintiff on March 2, 1951, and the plaintiff informed him that he was not ready to close the sale under the contract, and that he, the defendant, then told the plaintiff he would give him a few more days to close the transaction. The foregoing would constitute a defense to the plaintiff's suit for a refund of the $1,000 paid as earnest money because the defendant did not comply with the contract by delivering an insurable title to the property on or before March 1, 1951. The plaintiff was not available in Thomasville, Georgia, on either the day before March 1, 1951, or on that day. It was not necessary under the contract that the defendant notify the plaintiff prior to said date that he would have the title ready for delivery on March 1, 1951. The contract so provided, and the defendant was only obligated to deliver to the plaintiff an insurable title to the land on or before March 1, 1951; and he alleges in his amended answer that he was ready to deliver such title to the plaintiff on February 28, 1951, and on March 1, 1951, and could not get in touch with the plaintiff, who was in Florida. Without deciding whether or not it was incumbent on the defendant to have gotten in touch with the plaintiff in Florida or to have shown that he could not get in touch with the plaintiff in Florida, the amended answer shows that on March 2, 1951, the plaintiff and the defendant met and in response to the offer of the defendant to then deliver an insurable title to the plaintiff, the plaintiff stated that he was not ready to close the transaction, and that then the defendant informed him he would allow him additional time to close the deal. The amended answer showed a waiver of the time limit set out in the contract. It follows that the amendment by the defendant to his answer set forth an issuable defense to the plaintiff's suit on the contract for the refund of the $1,000 paid as earnest money because of the failure of the defendant to deliver to the plaintiff on March 1, 1951, an insurable title to said land, and was not subject to the general demurrer urged thereto. The allegation that the defendant procured in himself and was ready to deliver to the plaintiff an insurable title to said land was an allegation of fact. It was not incumbent on the defendant to allege that he had a policy of insurance on the title. The allegations of the defendant's answer as to the parties having waived the time limit set out in the contract for compliance therewith was sufficient to withstand the demurrer urged thereto.
It follows that the trial judge did not err in overruling the demurrers of the plaintiff to the answer as amended nor to the amendment to the answer.
The verdict and judgment for the defendant not being excepted to save insofar as affected by the alleged error on the overruling of the demurrers to the amendment to the answer, this court has no authority to pass upon the sufficiency of the evidence to support the verdict in the defendant's favor. Furthermore, no contention is made relative to the verdict and judgment except that the alleged antecedent error in the ruling on the demurrers rendered further proceedings in the case nugatory.
Judgment affirmed. Townsend and Carlisle, JJ., concur.