East Side Lumber & Coal Co. v. Barfield

• Decision Date: 10 March 1943
• Docket Number: 14461.
• Court: Georgia Supreme Court
• Parties: EAST SIDE LUMBER & COAL. CO. v. BARFIELD.

24 S.E.2d 681

195 Ga. 505

EAST SIDE LUMBER & COAL. CO. v. BARFIELD.

No. 14461.

Supreme Court of Georgia

March 10, 1943

Syllabus by the Court.

Where a petition for specific performance, cancellation, injunction and specific damages shows that it is impossible to specifically perform, that the note and deed sought to be canceled are valid legal obligations of the petitioner, and that no special damage has been sustained, but that if a future contingency should arise the petitioner would sustain stated damages, no cause of action is stated, and the petition should be dismissed on general demurrer.

On the former appearance of this case (193 Ga. 273, 18 S.E.2d 492) the judgment of the trial court overruling a motion to dismiss the petition was reversed on the ground that the petition failed to allege that the defendant contracted to procure the omitted inspection, and consequently failed to charge any breach of duty on the part of the defendant. The substance of the petition is there set out. Before the remittitur from this court was made the judgment of the trial court, the plaintiff tendered an amendment in which it was alleged that the defendant agreed and obligated under its contract with the plaintiff to have the Federal Housing Administration make the second and third compliance inspections, and that the defendant breached its contract by failing to have the second compliance inspection made. To the judgment allowing this amendment over the defendant's objection exceptions pendente lite were filed; and error is now assigned thereon. Another amendment by the plaintiff giving the name of the defendant's agent with whom he dealt, was allowed over defendant's objection, and error is assigned on exceptions pendente lite to the order allowing this amendment. In paragraph 37 of the original petition it is alleged that the plaintiff has an investment of $600 in the lot on which the dwelling has been constructed, and that he has additional investments therein consisting of a waterheater of the value of $112 and various and sundry minor expense of the value of $50, 'so that if he should be divested of title to said property he would sustain an actual loss of $762.' In paragraph 38 it is alleged that in addition to the foregoing loss which he may sustain he has been compelled, since the completion of the dwelling on June 1, to rent quarters for himself and family at an expense of $30 a month, so that at the date of the filing of the petition he has spent $60 for rent; and that unless granted the relief sought, he will continue to suffer damages and expenses in the same ratio. The relief prayed for was specific performance of the contract; surrender and cancellation of plaintiff's note for $3,300 executed to the defendant, together with the deed to secure the note; for injunction to prevent the sale of the premises under the security deed; that the defendant be required to accept $2,800 in full satisfaction of its note against the plaintiff for $3,300; and that in lieu of specific performance the plaintiff have damages in the amount of $822 already sustained, and for such future damages as might be sustained before the trial; for possession of the premises, or the appointment of a receiver; and for general relief.

The defendant filed a general demurrer to the petition as finally amended. To the judgment overruling the demurrer it filed exceptions pendente lite, on which error is now assigned. The trial resulted in a verdict answering ten questions submitted to the jury by the court, having the effect of awarding damages to the plaintiff of $700, and canceling the defendant's note for $3,300 against the plaintiff, together with the deed to secure the same. Decree was entered comformably to the verdict, and in addition decreeing 'that title to said property shall vest in defendant.' The defendant excepted to the judgment overruling its motion for a new trial.

Durwood T. Pye, of Atlanta, for plaintiff in error.

W. O Slate, J. D. Wilson,...