Opinion
20691.
ARGUED NOVEMBER 9 AND 10, 1959.
DECIDED JANUARY 8, 1960. REHEARING DENIED FEBRUARY 11, 1960.
Specific performance. Jones Superior Court. Before Judge Carpenter. August 21, 1959.
Anderson, Walker Reichert, David A. Handley, for plaintiff in error.
George L. Jackson, contra.
Specific performance of a contract for the sale of land will not be decreed unless the terms of sale and the description of the land which is the subject matter of the alleged agreement to sell are definite and certain. Both the description and the terms being so definite and certain in this case, the court did not err in overruling the general demurrer to the petition for specific performance.
ARGUED NOVEMBER 9 AND 10, 1959 — DECIDED JANUARY 8, 1960 — REHEARING DENIED FEBRUARY 11, 1960.
This is a specific-performance case involving an agreement to sell land. The contract of sale arises out of a series of letters amounting to an alleged offer and acceptance of certain land at a certain price under terms set out in the correspondence between the buyer and seller. The petition set forth the contents of the letters, and prayed for specific performance of the agreement to convey certain land definitely described in the petition. General demurrers were filed thereto and, after a hearing, overruled, and the exception is to that judgment.
The first question for decision is whether or not the description of the property contained in the letters is sufficient, in that by the aid of extrinsic evidence it can be located and shown to be the same property as that described in the petition, such that specific performance will lie; and the second question is whether or not the terms of the contract are so definite that the court will decree specific performance. The first letter refers to "my property south of you on Miller Field Road" and also to "Mr. Whitaker's land." The letter is addressed to the petitioner at Route 5, Miller Field Road, Macon, Georgia. The second letter, written in answer to the first by the petitioner, states an interest in purchasing the defendant's "property here in Jones County." The third letter is an offer to sell "my property next to yours" at $10,000. The fourth letter in answer stated that the petitioner was not interested in the purchase at this price. The fifth letter by the owner states that the property is "approximately 650 feet on Highway 49 and runs back about 2800 feet," and requests the petitioner to make an offer. The next letter by the petitioner offers to buy at $8,000 — $3,000 to $4,000 cash; balance at $1,000 per year at 6% interest with privilege of paying in full at any time before the last note falls due with accrued interest; and a binder of $50 for 30 days to have the title examined. The last letter by the owner accepts the offer at $8,000 — $4,000 cash; balance $1,000 per year with interest at 6% with prepayment privilege; and further advises that his attorney will contact the petitioner or his attorney to close the deal.
From the substance of all the letters the property finally agreed to between the parties is described as being next to and south of the land of the petitioner in Jones County, Georgia, being approximately 650 feet on Highway 49 and running back about 2800 feet. The above language is sufficient as a key by which with the aid of extrinsic evidence this property of the defendant can be located. The petition refers to the property as being all the land that the defendant owned in Jones County, and describes it as being the same land as shown by two recorded deeds to which reference is made. Of course, if the property immediately south of the petitioner is approximately 650 feet on the highway and runs back about 2800 feet, and the property described in the petition includes two tracts which do not meet this description, it does not properly describe the property offered and accepted. However, the descriptions in the petition and the letters are sufficient when aided by extrinsic evidence to locate the land intended, and the question is one for a jury to determine from evidence whether or not the property offered and accepted for sale is that sought in the petition. Mosher v. Rogers, 141 Ga. 557 ( 81 S.E. 852); Lyle v. Phillips, 141 Ga. 618 ( 81 S.E. 867); Clark v. Cagle, 141 Ga. 703 ( 82 S.E. 21, L.R.A. 1915A 317); Blumberg v. Nathan, 190 Ga. 64 ( 8 S.E.2d 374); Gainesville Midland Ry. Co. v. Tyner, 204 Ga. 535 ( 50 S.E.2d 108); Faulkner v. McKelvy, 207 Ga. 354 ( 61 S.E.2d 478). The amounts of the purchase price, cash and balance, are all definite and the terms of payment of $1,000 per year at 6% with prepayment privilege are also definite. It follows that the court did not err in overruling the general demurrer to the petition.
Judgment affirmed. All the Justices concur, except Mobley, J., who is disqualified.