Alghita v. Universal Inv. & Mfg. Co.
| Decision Date | 15 July 1983 |
| Docket Number | No. 66278,66278 |
| Citation | 167 Ga.App. 562,307 S.E.2d 99 |
| Parties | ALGHITA et al. v. UNIVERSAL INVESTMENT & MANUFACTURING COMPANY. |
| Court | Georgia Court of Appeals |
Alfred F. Brunetti, Decatur, for appellants.
James A. Eidson, Lexington, E.A. Simpson, Jr., Atlanta, for appellee.
On June 21, 1982, an agreement to transfer and reacquire stock of "Universal Investment & Manufacturing Co." (hereinafter referred to as "UIMCO") was executed by Heavy Machines Company, Inc. (Adnan Alghita, president). The agreement was referred to as being one between Alghita and UIMCO, but Alghita did not sign same except as president of Heavy Machines Company, Inc. (hereinafter referred to as "HMC, Inc."). The president of UIMCO, Hisham Araim, executed the agreement for this corporation. Simultaneously therewith, in consideration of the mutual covenants, UIMCO and HMC, Inc. executed an option agreement whereby UIMCO would sell to HMC, Inc., as purchaser, the various listed properties, provided the option was exercised. As to these properties and with particular reference to certain lots at Lake Lanier, Forsyth County, Georgia, the seller was given the option of selecting one of the lots and exempting it from the option provided it (UIMCO) gave written notice of such choice "ninety days from the date of this option or shall be deemed waived." On July 29, 1982, Hisham Ariam signed a letter as president (on the letterhead of "Intercontinental Services, Inc." and not UIMCO), advising Adnan Alghita (in care of his attorney and not addressing him as president of HMC, Inc.) that he was exercising the option to select lot 4 of Lake Lanier property to be excluded from the option agreement and same "may not be purchased under the Option Agreement." The Lake Lanier property option agreement also had a proviso that in the event of the execution of the option of purchase that if the seller "has sold or signed a contract for the sale of any parcel or portion of such property [Lake Lanier], the property sold or under contract shall not be subject to this option and the purchase price for the remaining property shall be reduced in a pro rata fashion."
A letter dated August 6, 1982 (certified mail, return receipt requested) from Adnan Alghita's attorney addressed to "Mr. Hisham Araim Universal Investment and Manufacturing Company" advised that Alghita was giving notice to exercise his right to option and purchase lot number 3 of the Lake Lanier property, and transfer the property to himself (Alghita). A check was enclosed drawn upon the attorney's trust account for the sum of down payment believed required and providing further that the transaction would be closed prior to the December deadline, the notice for closing calculations and place to be given later. In a letter dated August 10, 1982 (certified mail, return receipt requested), the secretary of UIMCO replied to the letter from Mr. Alghita's attorney (shown above) proposing to exercise the option to purchase lot 3 of the Lake Lanier property, advising that Mr. Ariam, president of UIMCO, was out of the country and that the letter did not properly exercise the option granted to HMC, Inc. by UIMCO but was defective in the following respects: (1) not accompanied by either cash, certified check or a bond and the earnest money payment from the attorney's trust account did not satisfy the requirements of Paragraph 5 of the agreement which required "cash or certified check or ... a bond ..."; (2) the right to purchase was granted by UIMCO to HMC, Inc. and not to Adnan Alghita, individually, and Paragraph 14 of the agreement clearly states that the purchaser "may not assign or transfer this Agreement, or any interest of Purchaser hereunder, without the prior written consent of Seller"; and (3) the letter fails to specify a time and place for closing as required by the option agreement in that the agreement requires closing to take place not less than five nor more than fifty days from the date of notice. In addition, however, the letter further stated that UIMCO could not accept the purported notice to purchase because the lot Alghita sought to purchase was involved in a sales contract as to that lot and two other lots, calling attention to the fact "that in the event at the execution of the option, seller has signed a contract for the sale of any portion of such property, the property under contract shall not be subject to this option." We note here that with reference to the proposed sale of Lot 3 (along with two other lots) UIMCO produced evidence that on August 5, 1982, UIMCO was negotiating for the sale of the above lots to Andrea Felker. On August 9, 1982, a contract was presented by Felker which was therein revised and executed by and between Felker and UIMCO, signed by its secretary on behalf of UIMCO. UIMCO also produced evidence that even though Mr. Ariam (President) was out of the country at the time of the execution of the contract, the directors and stockholders had previously agreed to accept a contract on the property and the secretary was directed to execute it on behalf of UIMCO.
In a letter dated August 11, 1982 (certified mail, return receipt requested), Adnan Alghita's attorney replied by forwarding certified funds and advising the date of closing and time (as suitable, in Atlanta, Georgia, or alternative locations), and further that he (attorney) had difficulty believing that there had been a potential contract on the referenced property, demanding a copy of the contract at once, if in fact, there was such a contract in existence. In answer to that letter, in a letter dated August 12, 1982 (certified mail, return receipt requested), UIMCO, by and through its secretary, replied that Mr. Alghita, individually, could not exercise the option which was granted by UIMCO to HMC, Inc., and in further clarification of the record, the specific lot 3, along with two other lots, was under contract, closing to take place no later than October 8, 1982, refusing the tender, and returning the "cashier's check." The letter also advised that UIMCO was under no obligation to furnish him (attorney) a copy of the signed contract and since Mr. Ariam, the president, was out of the country, she, the secretary, did not feel that she should voluntarily supply counsel with a copy of said contract. Again, in a letter...
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...contract claim, and accordingly appellee is entitled to judgment as a matter of law. See generally Alghita v. Universal Investment, etc., Co., 167 Ga.App. 562, 566-567, 307 S.E.2d 99 (1983). Judgment CARLEY, C.J., and DEEN, P.J., concur. ...
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