Bolton v. Barber
| Decision Date | 22 January 1975 |
| Docket Number | No. 29303,29303 |
| Citation | 233 Ga. 646,212 S.E.2d 766 |
| Parties | Gladys Cash BOLTON v. Gene BARBER. |
| Court | Georgia Supreme Court |
Gilbert & Hill, Fred A. Gilbert, Atlanta, for appellant.
Haas, Holland, Levison & Gibert, Richard G. Garrett, Theodore G. Frankel, Atlanta, for appellee.
Syllabus Opinion by the Court
This appeal is from the denial of a motion for summary judgment by Gladys Cash Bolton, one of the defendant sellers, in an action by the purchaser for specific performance of a written contract for sale of realty, or for damages. The trial judge certified the case for immediate review.
1. In Bolton v. Barber, 232 Ga. 70, 205 S.E.2d 266, this court held that the complaint was not subject to dismissal for failure to state a claim. The complaint did not include a copy of the contract. The decision stated that appellant's arguments might be appropriate on a motion for summary judgment. The motion here on appeal followed, and the contract is now before the court.
The seller asserts that the contract lacked mutuality because it was contingent on the purchaser securing a new conventional loan at an interest rate of 8 1/2%. The appellant relies on the ruling in F. & C. Investment Co. v. Jones, 210 Ga. 635, 81 S.E.2d 828, decided prior to the Civil Practice Act. The decision held that the petition was subject to general demurrer because the petitioner failed to allege that the contingency had occurred which would obligate the purchaser to buy the property.
The test of mutuality is to be applied as of the time the contract is to be enforced, and if the promisee accomplishes the object contemplated, then the contract is rendered valid and binding. Wehunt v. Pritchett, 208 Ga. 441, 443, 67 S.E.2d 233, Hall v. Wingate, 159 Ga. 630(1c), 126 S.E. 796. A contract contingent upon obtaining a loan becomes mutually binding when the loan is obtained. Teague v. Adair Realty & Loan Co., 92 Ga.App. 463, 466, 88 S.E.2d 795.
Many real estate contracts contain contingencies as to financing. When such contingency is satisfied, the parties, both buyer and seller, become obligated to perform the contract. If lack of mutuality were not thus overcome, contracts contingent upon financing would never be enforceable.
The purchaser's affidavit states that the loan specified by the contract was obtained. The real issue in the case is whether the loan was obtained during the life of the contract.
2. The contract provided that time was of the essence of the contract. It further provided: 'This contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement.'
The purchaser was unable to procure a loan before the closing date specified in the contract. When the loan was procured, the seller refused to perform the contract.
The appellant contends that the purchaser has no cause of action for specific performance or damages since he failed to perform his obligations under the contract (securing the loan and tendering payment) within the time provided therein, and any asserted extension of time for performing the obligations of the contract which was not in writing could not waive the time for performance.
It has been held by this court many times that if time is of the essence of a contract, it may be waived; and that subsequent conduct of the obligor may have that effect. See Moody v. Griffin, 60 Ga. 459; Stewart v. Ellis, 130 Ga. 685, 688, 61 S.E. 597; King v. Lipsey, 142 Ga. 832(1), 83 S.E. 957; Turner v. Chambers, 160 Ga. 93, 98, 127 S.E. 610; Cottle v. Tomlinson, ...
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...... Bolton v. Barber, 233 Ga. 646, 648, 212 S.E.2d 766 (1975). See also Perry Dev. Corp., supra; J.E.M. Enterprises v. Taco Pronto, 145 Ga.App. 573(1), 244 ......
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BCM Constr. Grp., LLC v. Williams
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