Cassville-White Associates, Ltd. v. Bartow Associates, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: QUILLIAN
• Citation: Cassville-White Associates, Ltd. v. Bartow Associates, Inc., 258 S.E.2d 175, 150 Ga.App. 561 (Ga. App. 1979)
• Decision Date: 04 September 1979
• Docket Number: CASSVILLE-WHITE,No. 57604,57604
• Parties: ASSOCIATES, LTD. et al. v. BARTOW ASSOCIATES, INC.

Page 175

258 S.E.2d 175

150 Ga.App. 561

CASSVILLE-WHITE ASSOCIATES, LTD. et al. v. BARTOW ASSOCIATES, INC.

No. 57604.

Court of Appeals of Georgia.

Argued April 4, 1979.

Decided June 7, 1979.

Rehearing Denied July 6, 1979.

Certiorari Denied Sept. 4, 1979.

Parker, Johnson & Cook, Terrill A. Parker, Kirk W. Watkins, G. William Long, III, Atlanta, for appellants.

Greene, Smith & Davis, Laurie C. Davis, Marietta, for appellee.

QUILLIAN, Presiding Judge.

This appeal by the defendant, Cassville-White Associates, is from a verdict for plaintiff, Bartow Associates resulting from an alleged breach of a contract for sale of realty. The entire facts of this case are quite convoluted and are unnecessary for understanding the issues. Cassville-White sold approximately 235 acres of land through a contract of sale, which eventually was deeded to the plaintiff Bartow Associates. The contract of sale and an amendment to the original contract provided for a cash down payment of $134,919.60 and release of 61.32 acres at closing at a release price of $2,200 per acre. However, at closing the purchasers were not ready to designate which 61.32 acres they desired and a "Release Agreement" was executed between the parties which acknowledged "receipt of $134,919.60" and because the "purchasers are not presently desirous of designating property to be so released, it is therefore understood and agreed that purchasers are entitled to the release of 61.32 acres without further payment and undersigned (Cassville-White) agrees to execute and deliver a Quit-Claim Deed releasing said acreage When called upon by purchaser." (Emphasis supplied.) After taking a warranty deed from Cassville-White plaintiffs executed a promissory note for $106,371.49 and a Deed to Secure Debt which provided: "Grantor (plaintiff) shall be entitled to releases from Grantee (defendant Cassville-White) by Quit-Claim Deed in recordable form upon written request of the Grantor (plaintiff) and upon payment by the Grantor (plaintiff) to the Grantee (Cassville-White) of Two Thousand Two Hundred and No/100 DOLLARS for each acre . . . sought to be released . . ." The deed to secure debt did not reflect that 61.32 acres had been paid for but not selected under the release provisions. The promissory note and the deed to secure debt were to run for a period of approximately six (6) years from September 28, 1973 to "31 August 1979." In accordance with the "Release Agreement" executed at closing, no acreage was selected or released at closing.

Before plaintiffs made a selection of acreage under the contract of sale and release agreement, they were notified by the attorney for a "Bartow 232 Group" that they had purchased plaintiffs' note and deed to secure debt executed by them to Cassville-White. Bartow 232 was not aware that there was a "Release Agreement" which provided for 61.32 acres to be released for money already paid. Inquiry by plaintiffs of Cassville-White directed plaintiffs to send their request for release of the 61.32 acres to Bartow 232. Upon presentation of the release and all required papers, Bartow 232 Group refused to release the acreage. Plaintiffs brought this action for damages not specific performance, and the trial court directed a verdict for the plaintiffs as to liability, denied defendant's motion for directed verdict and for judgment n. o. v., and submitted the issue of damages to the jury. Defendants bring this appeal. The amount of the jury verdict is not in issue. Held :

1. Cassville-White alleges the trial court erred in failing to grant their motion for directed verdict and judgment n. o. v., "because appellee (Bartow Associates) was in default both at the time it required performance and at the time it filed suit and such default prevents the trial court's implicit equitable reformation of the deed to secure debt." We do not agree:

Defendant contends Jordan v. Flynt, 240 Ga. 359, 240 S.E.2d 858 "necessitates . . . reversal." Jordan involved a sale of land by a sales contract release and a deed with release provisions. However, the plaintiff therein filed an action "(seeking) specific performance of the release provisions" which falls within the equity jurisdiction of the Supreme Court. In the instant case the plaintiff sought damages for breach of a sales contract, which falls within the jurisdiction of this Court. The Supreme Court noted, in Jordan, "if the trial court should determine on remand that the appellant is not entitled to specific performance, he may still be entitled to damages at law for a breach of the release provisions of the security deed by the appellee . . ." Id at 367, 240 S.E.2d at 864. Thus Jordan is decisive, but it holds only that "the decree of specific performance was improper since the plaintiff was in default at the time suit was filed . . ." Id. at 364, 240 S.E.2d at 862. Specific performance was not sought in the instant case. Damages were sought. Jordan also holds that damages may properly be sought for breach of contract provisions regarding release of property.

Defendant also argues that the contract for sale, the amendment to that contract, and the "Release Agreement," merged into the Deed to Secure Debt, and its provisions control. We do not agree for a number of reasons. First merger was not enumerated as an issue in the enumerations of error. This court has no jurisdiction to consider grounds argued in the brief which are not enumerated as error. Calhoun v. Patrick, 116 Ga.App. 303, 157 S.E.2d 31.

Secondly, even if the "merger" issue was included within this enumeration, the defendant would not prevail. "An antecedent sales contract covering the purchase and sale of real property generally merges into a subsequent deed involving the same property. (Cit.) However, where 'it was contemplated by the parties that the subsequent execution of a deed pursuant to a written sales contract was only a part performance of the provisions of the antecedent sales contract and that certain obligations contained in the antecedent contract were to be performed by the defendant after the delivery of possession of the property and the warranty deed thereto and were to survive the execution of the deed, these duties and obligations were not necessarily merged in the deed.' " Cullens v. Woodruff, 137 Ga.App. 262(1), 223 S.E.2d 293, 294; C & G Candler v. Ga. Power Co., 138 Ga.App. 279, 280, 226 S.E.2d 87; San Joi, Inc. v. Peek, 140 Ga.App. 397, 398-399, 231 S.E.2d 145; Carson v. Parks, 141 Ga.App. 466, 468, 233 S.E.2d 857; Pindar, Ga. Real Estate Law 676, § 19-146; see also Annots., 38 A.L.R.2d 1310, 1324, §§ 6, 7; 52 A.L.R.2d 641-651. In the instant case the "Release Agreement" was collateral to the deed to secure debt, and was to be performed by the plaintiff and defendant in the future, and was not inconsistent with any covenant within the deed. It did not merge with the deed.

2. Defendant charges the trial court erred in refusing their motions for directed verdict and judgment n. o. v. "because appellants never refused to execute a quitclaim deed to appellee." The evidence of the plaintiffs showed that the intent of the parties was to release defendant's interest in the 61.32 acres to the plaintiff "when called upon by the purchaser." However, it is apparent that defendant could pass no interest in the 61.32 acres to the plaintiffs as they had already transferred whatever interest they possessed to the Bartow 232 Group. See Pindar, Ga. Real Estate Law 613, § 19-20. Thus, a quitclaim deed from the defendant, after they had transferred their interest in all of the property, would not comply with the prior sales contract or the release agreement. And the law does not require the doing of a vain and useless act. Irvin v. Locke, 200 Ga. 675, 679, 38 S.E.2d 289. This enumeration is without merit.

3. The third enumeration alleges the " 'release agreement' (a) was too vague and indefinite to constitute a valid contract and (b) was without consideration."

( a) Defendant's argument infers that the "Release Agreement" itself must possess all of the essentials of a contract. This is an incorrect inference. It is not essential that a contract be contained in a single document. Horne & Ponder v. O. B. & E. J. Evans, 31 Ga.App. 370(2), 120 S.E. 787; Cocke v. Bank of Dawson, 180 Ga. 714, 718, 180 S.E. 711. Binding contracts may consist of several writings provided there is no conflict between the various parts. See 17 C.J.S. Contracts ...