Opinion
41916.
SUBMITTED APRIL 4, 1966.
DECIDED APRIL 13, 1966.
Action on contract, etc. Hall Superior Court. Before Judge Kenyon.
Hammond Johnson, Jr., for appellant.
Reed Dunn, Robert J. Reed, for appellee.
The plaintiffs' petition stated a cause of action and the trial court erred in sustaining the defendant's general and special demurrers.
SUBMITTED APRIL 4, 1966 — DECIDED APRIL 13, 1966.
This is an appeal from the judgment of the trial court sustaining the defendant's general and special demurrers to the plaintiffs' petition and dismissing same. The petition which was brought in two counts alleged that on July 2, 1962, the defendant entered into a written option contract with the plaintiffs, the contract, a copy of which was attached to the petition as an exhibit, providing in part as follows: "That For And In Consideration Of The Sum Of One Hundred Fifty and no/100 ($150.00) Dollars, the party of the first part conveys to the party of the second part an option to buy the following described property for the sum of $1,677.00 Dollars, to-wit: [description omitted]. Time is the essence of this contract, and should party of the second part decide to exercise this option to buy, the sum of $1,377.00 of the purchase money must be paid in cash and three (3) postdated Bank checks in the sum of $50.00 each dated October 1st, 1962, and due and payable on the 1st day of November and December, 1962, and January 1st, 1963, payable to J. H. Bruce, by Noon on October 1st, 1962. In the event the parties of the second part fail to exercise this option by noon, October 1st, 1962, said second parties forfeit said $150.00 paid herein, and party of the first part shall have and own said $150.00 as liquidated damages. Should parties of the second part exercise this option then the said $150.00 paid herein shall be credited to the purchase price of said lands." The petition further alleged that the plaintiffs on August 29, 1962, through their attorney, exercised the above option and notified the defendant by letter that they were ready to complete the purchase of the subject land and would pay the balance of the purchase price upon the execution and delivery of a warranty deed conveying the described property; that by letter of August 31, 1962, the defendant through his attorney notified the plaintiffs that the defendant was willing and able to convey the property to plaintiffs, but that the consideration would be $2,174 rather than the consideration set out in the option contract; that on September 11, 1962, the plaintiffs notified the defendant by letter that they were ready to complete the sale on the basis of the written option, but that if the defendant did not want to comply with this contract, to please refund the $150 down payment; and that again on September 14, 1962, the plaintiffs by letter asked the defendant to notify them whether he was ready to proceed under the terms of the written contract or to refund the $150 paid (copies of all of these letters being attached to the petition as exhibits). It was further alleged that the defendant failed and refused to carry out his written contract or to refund the $150 paid for the option; that the land which is the subject matter of the option is now worth $2,174; and that the defendant acted in bad faith and caused plaintiffs unnecessary trouble and expense of $300 for counsel fees. The plaintiffs in count 1 of the petition sought to recover damages for breach of contract in the amount of $1,097, plus interest from August 31, 1962, in the amount of $153.58. In count 2 the plaintiffs sought to recover the sum of $150, which the defendant refused to return, plus attorneys' fees in the amount of $300.
The defendant demurred generally to the petition as a whole and filed special demurrers to the paragraph of each count of the petition in which the plaintiffs sought to recover attorneys' fees for bad faith on the ground that the allegations of the petition did not show that the plaintiffs were entitled to recover attorneys' fees.
1. It is contended by the defendant that the trial court properly sustained the general demurrer to the petition since the facts alleged therein did not show that the plaintiffs had made an unconditional tender of the purchase price in cash and by three post-dated checks as provided in the option contract. This contention is without merit.
"Where a vendee sues to recover damages for an alleged breach of contract by the vendor by refusing to make conveyance, the general rule is that a prerequisite to a recovery therefor is a tender of the purchase money. Such tender is waived, however, by the vendor's proclaiming, by conduct or declaration, that, if a tender should be made, acceptance would be refused. Emery v. Atlanta Real Estate Exchange, 88 Ga. 321, 327 [14 S.E. 556]; Smith v. Tatum, 140 Ga. 719 (2) ( 79 S.E. 775); Fraser v. Jarrett, 153 Ga. 441, 451 (3) ( 112 S.E. 487)." Pritchett v. Dodd, 112 Ga. App. 453, 454 ( 145 S.E.2d 610). The plaintiffs had until October 1, 1962, to exercise their option to purchase the defendant's property for a total consideration of $1,677 under the written contract executed by the parties; yet, according to the allegations of the petition, the defendant notified the plaintiffs on August 31, 1962, that the sale price would be $2,174 rather than the consideration set forth in the contract. Clearly, under the decision of the Supreme Court in Nickelson v. Owenby, 208 Ga. 352 (2) ( 66 S.E.2d 828), the allegation that the defendant informed the plaintiffs that he was ready to complete the sale but for the consideration of $2,174 rather than the price set forth in the option contract, was the equivalent of a statement that the tender of the contract price would be refused if made, and such allegation was sufficient to show a waiver of necessity for tender.
Count 1 set forth a cause of action to recover damages for breach of contract and count 2 set forth a cause of action to recover damages for money had and received and the trial court erred in sustaining the general demurrer to the petition. Pritchett v. Dodd, 112 Ga. App. 453, supra; Woodruff v. Camp, 101 Ga. App. 124 (1) ( 112 S.E.2d 831).
2. The trial court also erred in sustaining the special demurrers to the petition. The allegations of the petition which disclosed that the defendant not only breached the terms of the written option contract by demanding more money for the subject property, but that he also refused to return the $150 paid to him as consideration for the option contract, were in our opinion sufficient to authorize the conclusion that the defendant was guilty of bad faith and presented a question for the jury on the issue of the recovery of attorneys' fees. Code § 20-1404; Chambers Co. v. Harper, 83 Ga. 382 (2) ( 9 S.E. 717); Williams v. Harris, 207 Ga. 576 (3) ( 63 S.E.2d 386); Bowman v. Poole, 212 Ga. 261 (3) ( 91 S.E.2d 770); Whitaker v. Creedon, 97 Ga. App. 320, 329 ( 103 S.E.2d 175).
Judgment reversed. Bell, P. J., and Eberhardt, J., concur.