Boney v. Cheshire

• Decision Date: 17 May 1917
• Docket Number: 454.
• Citation: 92 S.E. 636,147 Ga. 30
• Parties: BONEY v. CHESHIRE.
• Court: Georgia Supreme Court

92 S.E. 636

147 Ga. 30

BONEY v. CHESHIRE.

No. 454.

Supreme Court of Georgia

May 17, 1917

Syllabus by the Court.

The petition is not open to the criticism that it is multifarious, because it asks for both specific performance of the contract and damages for the alleged breach thereof. The prayer was in the alternative. Where the specific performance is impossible, or the vendee declines to accept performance in part, the court may proceed to assess damages for the breach of the contract. Civ. Code 1910, § 4639.

Failure of a petition for specific performance of a contract to allege that the contract was in writing cannot be taken advantage of by demurrer. Such failure raises no presumption that the contract exists only in parol. A party may not set out his evidence in his pleadings. Anderson v. Hilton & Dodge Lumber Co., 121 Ga. 688, 49 S.E. 725.

The description, in an agreement to convey, "certain real estate of the plaintiff, known as No. 48 Angier avenue, in the city of Atlanta, Fulton county, Georgia," is not so indefinite as to render it void for uncertainty and subject to general demurrer. Bush v. Black, 142 Ga. 157, 82 S.E. 530; King v. Brice, 145 Ga. 65, 88 S.E. 960.

Nor is the description, in an agreement to convey, "a certain tract of land located in Troup county, state of Georgia, in the Fourth land district, and being 113 1/2 acres from the east side of land lot 54, all of land lot 49, 6 acres in the immediate northeast corner of land lot 21, 112 acres from land lots 20 and 21, said tracts comprising approximately 400 acres, and being the same property as described in deed recorded among Troup County Records in Book 10, p. 656, and known as the Roberts place," so indefinite as to render it void and subject to general demurrer. It is sufficiently definite to admit parol evidence to fix its boundaries. Lyle v. Phillips, 141 Ga. 618, 81 S.E. 867; Clark v. Cagle, 141 Ga. 704, 82 S.E. 21, L.R.A 1915A, 317(2); Johnson v. McKay, 119 Ga. 196, 45 S.E. 992, 100 Am.St.Rep. 166; Oatis v. Brown, 59 Ga 711. See Wellmaker v. Wheatley, 123 Ga. 201, 51 S.E 436(5); Allen v. Lindsey, 139 Ga. 648, 77 S.E. 1054.

An agreement to convey certain described real estate to a vendee in consideration of the conveyance of certain other real estate by the vendee is on such a valuable consideration as will support a contract.

The other assignments of error are without substantial merit.

The court did not err in overruling the general demurrer.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action between Mrs. Edwin M. Boney and Mrs. L. C. Cheshire. Judgment for the latter, and the former brings error. Affirmed.

Description in an agreement to convey certain lands located in Troup county, Ga., in a certain land district, and all or parts of certain numbered lots, held sufficiently definite to admit parol evidence to fix its boundaries.

Mrs. L C. Cheshire filed a petition against Mrs. Edwin M. Boney formerly Mrs. N.M. Meyers, and alleged substantially as follows: On or about April 29, 1915, plaintiff and defendant entered into a contract for the exchange of certain property, wherein it was agreed that defendant would purchase of the plaintiff certain real estate--

"known as No. 48 Angier avenue, in the city of Atlanta, Fulton county, she to assume a loan thereon of $2,600, and defendant agreeing to convey to petitioner a certain...