Opinion
15881.
JULY 10, 1947. REHEARING DENIED JULY 22, 1947.
Specific performance. Before Judge Hendrix. Fulton Superior Court. April 4, 1947.
G. S. Peck, for plaintiff.
Grover Middlebrooks and William H. Mewbourne, for defendants.
1. "Three elements are essential to a contract of sale: 1. An identification of the thing sold. 2. An agreement as to the price to be paid. 3. Consent of the parties." Code, § 96-101.
2. While that is certain which can be made certain, still the basis for rendering certain that which by the terms of the contract is uncertain must be afforded by the agreement. Friedlander v. Schloss Bros. Co., 43 Ga. App. 646 (3) ( 159 S.E. 870).
3. Actual possession by the purchaser of the property which was the subject-matter of the sale in the writing here under consideration was sufficient to meet the requirement as to an identification of the thing sold. Particularly is this true on general demurrer, where the defendant admitted that the property specifically described in the petition was the property which was the subject-matter of the writing sued on. See Blumberg v. Nathan, 190 Ga. 64, 67 ( 8 S.E.2d 374).
4. In the instant case, the subject-matter of the writing being sufficiently certain, the only remaining question is, can the consideration of the sale be determined from the terms of the written agreement? In an action for specific performance of a contract to convey realty, the consideration must either be expressly stated by the writing itself or it must furnish a key by which the amount of the purchase-price can be ascertained. Muller v. Cooper, 165 Ga. 439 ( 141 S.E. 300). If its ascertainment becomes impossible, there is no sale. Code, § 96-104. Such a key cannot, however, afford a basis to add by parol an essential element to the validity of a contract, or to contradict in anywise the terms of the written agreement. Massell Realty Co. v. Hanbury, 165 Ga. 534, 546 ( 141 S.E. 653).
5. If the terms of the written agreement show a moneyed consideration plus the assumption of mortgages or other encumbrances which are properly identified in the agreement, the amount of the purchase-price can be ascertained by reference to such encumbrances, and the contract is capable of enforcement by specific performance. Massell Realty Co. v. Hanbury, 165 Ga. 534, 546, supra.
6. Applying the foregoing rules to the writing in the instant case, the consideration is expressed as being $150 plus the assumption by the purchaser of the payment of two mortgages outstanding against the property. As to the first mortgage, there appears to be an inaccuracy as to the name of the first mortgagee, in that the sales agreement indicates such mortgage to be held by Jefferson Mortgage Company, whereas the petition itself shows that this mortgage was in fact held by Investors Syndicate, of which Jefferson Mortgage Company is merely the agent, and it is not made to appear that the mortgage itself in anywise discloses such agency. It is unnecessary to adjudicate whether such a discrepancy can be explained by parol, and the amount of the first mortgage, referred to in the sales agreement, be thereby made ascertainable. This is true for the reason that the remainder of the consideration represented by the second mortgage is wholly unascertainable either from the terms of the writing or by any key afforded by the writing. The writing states that the purchaser is to assume the payment of a second mortgage made in favor of Newbold Development Company. The petition seeks to contradict this term of the agreement by showing that the purpose and intent of the agreement was that the plaintiff purchaser was to assume a pro rata portion of a blanket mortgage made not to, but by, Newbold Development Company, by which it conveyed various parcels of land to unnamed creditors to secure payment for materials furnished. It will be seen, therefore, that the parol evidence necessary to properly identify the second mortgage which the purchaser was to assume would necessarily have the effect of actually contradicting the terms of the writing, and this the purchaser, relying on the agreement as written, cannot be permitted to do.
It follows, therefore, that since the reference to the second mortgage does not furnish a key by which the amount of the loan, and therefore the amount of the consideration, can be ascertained, the trial court did not err in sustaining the demurrers to the petition, attacking the writing as being too vague and uncertain in this respect to constitute a valid written contract such as could be enforced by a decree of specific performance.
7. It is unnecessary to pass upon the question as to whether or not the allegations of the petition are sufficient to state a separate cause of action under the Code, § 37-802, providing for specific performance of a parol contract as to land where there has been partial payment accompanied with possession. This is true for the reason that the action here is for specific performance under a stated written agreement to convey land; and in the absence of a separate count setting up the terms of any valid parol agreement and praying for specific performance thereof, no such question is presented by the pleadings.
Judgment affirmed. All the Justices concur.
No. 15881. JULY 10, 1947. REHEARING DENIED JULY 22, 1947.
STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE.
A. G. Sturdivant brought suit for specific performance of the following written sales agreement: "March 2, 1943. I, E. B. Walker, do hereby agree to sell to A. G. Sturdivant house and lot known as 1265 Campbellton Road, Fulton County, Georgia, for the sum of one hundred and fifty dollars. Ten dollars hereby received as (earnest) money to be applied on said one hundred and fifty dollars upon delivery of clear title, and I, A. G. Sturdivant, agree to pay balance of said one hundred and fifty dollars and assume payments of first mortgage held by Jefferson Mortgage Corporation payable at thirty-two dollars and thirty-nine cents per month and second mortgage made in favor of Newbold Development Co. as per agreement signed by E. B. Walker upon delivery of clear title. Any payments which may fall due from this date to date of delivery of clear title to be paid by A. G. Sturdivant. All expense incident to the transfer of title of above property to be prorated equally between the above parties. Accepted A. G. Sturdivant. [Signed] E. B. Walker." The petition fully described the premises and alleged that the purchaser had been put in possession thereof. With respect to the first mortgage mentioned in the above sales agreement, the petition shows as follows: "Petitioner, upon the purchase of said property on March 2, 1943, went to the office of the Jefferson Mortgage Company, and had his name substituted for that of the Newbold Development Company, and all notices regarding the loan from said company or from the Investors Syndicate, which holds the loan, have been sent to him up to the present time, and he has made all the payments thereon." With respect to the second mortgage mentioned in the sales agreement, the petition shows: "That there were no payments falling due under the second mortgage, which under petitioner's said contract he would have been obligated to pay, but said second mortgage was a blanket mortgage given by the Newbold Development Co. to secure its creditors in the payment for building materials which they had furnished to said company, and against which company they had filed a bill for receivership, and which amount when determined was due in a lump sum upon the sale of the various properties covered by said blanket mortgage and upon the delivery of a conveyance made by said Newbold Development Co. to the respective purchasers of the various lots included in said second mortgage, which conveyances had been delivered in escrow by said company to be delivered to said respective purchasers upon payment of the amount of the purchase-price thereof." The petition further alleged: "That the defendant, E. B. Walker, advised petitioner at the time of entering into said sale contract, that there was a controversy as to the amount due under the second mortgage, and that he would advise him of the amount due thereunder at the time defendants obtained clear title to the property so that petitioner might pay the same;" that the petitioner requested the defendants to execute a deed, but the "defendants declined to do this, and instead, without any notice to petitioner of their intention to do so, and without ever notifying petitioner of the amount due on said second mortgage, went to the holder of said second mortgage, and for the first time agreed to the figures which said mortgage had at all times stated was the amount due, paid the amount thereof in the sum of $408.98, and procured the escrow deed from the Newbold Development Co. to defendants, thereby for the first time acquiring the clear title to said property, subject to said first loan, on March 23, 1946." The petition further alleged tender and its refusal; that the purchase-price was reasonable; that the petitioner was ready, able, and willing to carry out the provisions of said contract, and is desirous of doing so, and extended a continuous tender of the purchase-price including the amount of the second mortgage. The petition prayed for specific performance of the written agreement, and for an order temporarily restraining the defendants from alienating the property. Exceptions are to the order of the trial court sustaining general demurrers to the petition, attacking the sales agreement as being too vague and uncertain, both as to its subject-matter and as to the consideration, to constitute a valid contract capable of enforcement by a decree of specific performance.