Carter v. Turbeville, 35182
| Decision Date | 26 May 1954 |
| Docket Number | No. 2,No. 35182,35182,2 |
| Citation | 83 S.E.2d 72,90 Ga.App. 367 |
| Parties | CARTER v. TURBEVILLE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court erred in overruling the demurrer. The demurrer should have been sustained and the suit dismissed.
M. C. Turbeville, Jr. (whom we shall call the plaintiff), sued David S. Carter (whom we shall call the defendant), for $500, for 'money had and received.' The suit is based upon a contract. Omitting the description of the property, the contract provides: 'The purchase price of said property shall be Fourteen Thousand and no/100 ..... Dollars ($14,000.00) to be paid as follows: Terms: Cash. Title to the aforedescribed property is to be conveyed by Seller to Purchaser by general warranty deed. Taxes, rentals, insurance premiums and water rent are to be prorated as of the date of the consummation of this sale. Said property is sold subject to all valid restrictions of record, zoning ordinances affecting the same, existing rental contracts and incompleted paving contracts or assessments.
'The sale is to be consummated within forty-five (45) days from the date of the acceptance of this offer by seller or purchaser who last executes this contract, during which time Purchaser shall have the opportunity of having the title examined; it being expressly understood and agreed between the parties hereto that time is of the essence of this contract. Should any legal defect be found in the title, Seller shall be furnished with a written statement thereof within said period of forty-five (45) days from the effective date of this contract, and given a reasonable time thereafter within which to correct the same, however, in no event to exceed sixty days from the date of said notice of defect.
Purchaser has paid to Seller's Agent, Five Hundred and no/100 ..... Dollars ($500.00), as earnest money, to be applied as part payment on the purchase price of said property. If the sale is not consummated due to Purchaser's default, the earnest money shall be applied to agent's commission hereunder and agent shall pay the balance, if any, to Seller to be applied toward Seller's damages caused by Purchaser's default. In the event the sale is not consummated for reasons other than default of Purchaser the earnest money is to be refunded to the Purchaser.
'The Agent in negotiating this contract has rendered a valuable service and Seller agrees to pay Agent's commission based upon total sales price as follows: Property within City Limits, 5%; property outside City Limits, 10% on first $2,500.00 plus 5% on excess. If sale is not consummated, due to default to Purchaser, Seller shall not be obligated to pay any commission, but Purchaser shall pay said commission.
'The Agent's commission as herein provided shall not be cancelled or defeated in the event the seller and buyer should mutually agree to call of the sale and the earnest money paid hereunder shall be applied to the payment of said commission; the balance, if any, shall be refunded to the purchaser. In the event the amount of said deposit is insufficient to pay agent's commission as herein provided, seller and purchaser shall be jointly liable for the balance due the agent thereon.
'Should the aforesaid property be improved and such improvement be wholly destroyed by fire or other hazards before sale is consummated, the loss shall fall on the Seller. If such loss is partial, then at the option of the Purchaser, the Seller shall repair or restore the premises to their former condition or the Purchaser shall be allowed to deduct from the agreed purchase price the amount necessary to repair or restore the premises t othe condition of same prior to the casualty. If the parties are unable to agree as to the amount necessary to repair or restore the property to its former condition, in the event of either a total or a partial loss, then each party shall name one appraiser and the two appraisers shall name an umpire, and the decision of the majority shall determine the amount to be deducted from the purchase price, which decision and award shall have the force and effect of a statutory award as provided by the law of Georgia.
'This contract constitutes the entire agreement between the parties, and shall be binding upon and inure to the benefit of the heirs, executors, administrators, and assigns of the respective parties hereto.
'The following special stipulations shall, if in conflict with the printed matter, control: 'Special Stipulations: The within sale is expressly contingent upon the Purchaser's ability to secure a loan of $11,200 on the Insured Mortgage Plan of the Federal Housing Administration on the subject property, which is to be repayable in twenty (20) years.
'This instrument shall be regarded as an offer by the Seller or Purchaser who first executes the same, to the other, and is open for acceptance by the other until noon, on the ___ day of September, 1952, by which time this contract must have been accepted and executed by both seller and purchaser and have been actually received by the Agent.
'Executed in the Presence of:
s/ M. Beall
________
Notary Public
Witness the Hand and Seal of the Undersigned:
s/ Michael C. Turbeville, Jr. (L.S.)
(Signature) Purchaser
________ (L.S.)
(Print name in which title desired) Purchaser
Lynes Realty Company
Realtor: Member Savannah Real Estate Board, Agents.
'The above proposition is hereby accepted this 30 day of September, 1952.
'Executed in the Presence of:
s/ M. Beall
________
Notary Public.
'Witness the Hand and Seal of the Undersigned:
s/ David S. Carter (L.S.)
Seller.
________ (L.S.)
Seller.
Lynes Realty Company
Realtor: Member Savannah Real Estate Board, Agents.'
The defendant filed a general demurrer to the petition. The City Court of Savannah entered an order overruling the demurrer. Error is assigned on this judgment.
Leon L. Polstein, Brannen, Clark ,& Hester, Savannah, for plaintiff in error.
Harry P. Anestos, Savannah, for defendant in error.
1. (a) In unambiguous contracts, the rights and liabilities of the parties are matters of law for the court to determine upon...
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