Carpenter v. Parsons
| Decision Date | 22 February 1988 |
| Docket Number | No. 75293,75293 |
| Citation | 186 Ga.App. 3,366 S.E.2d 367 |
| Parties | CARPENTER v. PARSONS. |
| Court | Georgia Court of Appeals |
M.C. Carpenter, pro se.
R. Scott Cunningham, Dalton, for appellee.
M.C. Carpenter instituted action against Ishmael D. Parsons, alleging fraud and breach of a contract giving Carpenter an option to purchase real estate owned by Parsons. The case was tried before a jury, and at the close of Carpenter's evidence the trial court granted Parsons' motion for a directed verdict. Carpenter's motion for a new trial was denied, and he appeals.
The record reveals the parties entered into a contract in August 1984 giving appellant the option to purchase from appellee a lot, 80 feet by 200 feet, "more or less," for $1,600, which option could be exercised within one year. Appellant paid $150 as a down payment, and made one subsequent payment of $80 in October 1984. In April 1985, without appellant's knowledge, appellee sold the lot in question to third parties, giving them a warranty deed. The lot was then reconveyed to appellee by the third parties that same month, after appellant learned of the sale and complained to appellee.
1. Appellee's motion for contempt is denied.
2. Appellant contends, on several grounds, that the trial court erred by granting appellee's motion for a directed verdict. A directed verdict is proper "[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict." OCGA § 9-11-50 (a).
(a) We find no merit in appellant's contention that the jury should have been allowed to decide whether the parties' agreement was an option contract or an installment purchase contract. Pretermitting the question whether this would have been a proper question for jury determination had the evidence been in conflict, we find that no question remained for jury consideration on this issue. Although the document evidencing the parties' agreement was never tendered or admitted into evidence, both parties admitted in the proceedings below that an option contract was intended, and appellant referred to it as such in his sworn testimony. There was thus no conflict in the evidence as to this issue.
(b) Appellant asserts the trial court erred by granting appellee's motion for a directed verdict because the question whether appellee breached the contract, either by his lack of ownership of the lot during twenty days in April 1985, or by his inability to convey to appellant an entire 80 feet by 200 feet lot, required resolution by the jury. We do not agree, since resolution of these issues is not necessary. "A party may contract to convey property not then owned by him." Williams v. Bell, 126 Ga.App. 432, 434(1), 190 S.E.2d 818 (1972). It is only if he is not able to convey the property on the consummation date that he will be liable in damages for breach. Id. Similarly, any discrepancy in the dimensions of the lot would have been material only if appellant had been ready, willing, and able to go forward with the contract. In an option contract, it is necessary, in order to establish a breach on the part of the seller, that the purchaser tender the purchase price and request conveyance of the land to him, and that the seller fail to comply. Moore v. Hughey, 133 Ga.App. 901, 902, 212 S.E.2d 503 (1975). In the case sub judice, it is undisputed that appellant never tendered the full purchase price, nor did he request or demand that appellee convey the lot to him at any time during the period covered by the option contract. Thus appellant did not establish default on the part of appellee, and the trial court did not err by granting a directed verdict in favor of appellee on the issue of breach of contract.
(c) Appellant next asserts the trial court erred by granting a directed verdict to appellee on the issue of fraud, because the evidence was in conflict as to whether appellee knowingly misrepresented the dimensions of the lot. However, ...
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