Butler v. R. J. Spiller Inc

• Decision Date: 15 October 1931
• Docket Number: No. 8285.,8285.
• Citation: 173 Ga. 564,160 S.E. 907
• Parties: BUTLER v. R. J. SPILLER, Inc.
• Court: Georgia Supreme Court

173 Ga. 564

160 S.E. 907

BUTLER

v.R. J. SPILLER, Inc.

No. 8285.

Supreme Court of Georgia.

Oct. 15, 1931.

The original petition sought specific performance, and the defendant in accordance therewith tendered full performance in open court. Subsequently, plaintiff sought to amend the original petition by claiming damages, in lieu of performance. The trial court disallowed the amendments and entered an order granting specific performance on condition of plaintiff performing within 10 days, but plaintiff failed to tender performance within this time, and the court thereupon entered a final decree for defendant.

Syllabus by the Court.

There being no exception to the final decree in this case, on motion the writ of error is dismissed.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by G. H. Butler against R. J. Spiller, Incorporated. Judgment for defendant, and plaintiff brings error.

Writ of error dismissed.

Craighead & Craighead and Wm. C. Hen-son, all of Atlanta, for plaintiff in error.

Underwood, Haas & Gambrell, of Atlanta, for defendant in error.

HILL, J.

On the call of this case in the Supreme Court a motion was made to dismiss the writ of error, on the ground that there was no exception to any final judgment rendered in the case. Prom the record it appears that G. H. Butler filed an equitable petition against R. J. Spiller, Incorporated, for specific performance of a contract concerning the sale of real estate. Spiller answered, denying the plaintiff's right to specific performance; and the issue thus joined came on to be tried on January 16, 1931. Counsel for Spiller, without waiving defense or acknowledging the validity of the contract sued on, offered to perform the contract by executing a deed to the property to the plaintiff. The plaintiff in error then sought to amend the original petition by striking therefrom all prayers for specific performance, and claiming damages in lieu thereof; and by a second amendment he sought to show his damages in lieu of specific performance, because of a material change in the value of the property between the filing of the suit, when the defendant refused to perform, and the date of the trial; and alleged that specific performance was impossible, because the defendant had incumbered the premises, and that his tender of performance at that time was not a good tender. The court disallowed the first amendment, in the following order: "The defendant having offered to perform, and consenting in open court to such, decree before the foregoing amendment was tendered, the amendment is denied; and it is directed that decree be prepared and presented to the court as prayed for in the original petition. This January 16, 1031." Thereupon the plaintiff tendered his second amendment, as above set out. The court disallowed this amendment, in the following order: "The foregoing amendment is disallowed in its present form. The court has advised the plaintiff that an amendment alleging change of status would be allowed if tendered free from objectionable matter. This January 16, 1931." The plaintiff having declined to amend or further proceed with the case, the court entered the following order: "This case coming up for trial, and defendant having tendered in open court full performance in accordance with the prayers of the petition, specific performance of the contract set out in petition is hereby decreed, and defendant is hereby ordered and directed to make convey ance to plaintiff upon compliance by plaintiff with his obligation under said contract. Upon failure by plaintiff to perform within ten days from this date, all right under said eon-tract shall cease and terminate. This 16th day of January, 1931." The plaintiff having failed to tender performance on his part within ten days from date of last order, the court entered a final decree in the case as follows: "...