Coppage v. King

• Decision Date: 19 June 1957
• Docket Number: No. 36739,No. 2,36739,2
• Parties: Dinkins COPPAGE v. Calvin A. KING
• Court: Georgia Court of Appeals

Page 541

99 S.E.2d 541

96 Ga.App. 192

Dinkins COPPAGE v. Calvin A. KING.

No. 36739.

Court of Appeals of Georgia, Division No. 2.

June 19, 1957.

Rehearing Denied July 11, 1957.

Syllabus by the Court.

1. A contract of sale of a tract of land described therein as measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described, and if he has no title to a portion of it this is a material breach of the contract, entitling the purchaser to a rescission of the contract of sale at his election. The defendant purchaser here being justified in rescinding the contract of sale for failure of the covenant relating to marketable title, the real estate broker who procured the contract between the parties cannot recover his commission out of the prospective purchaser.

2. The dimensions of the tract having been stated with exactitude in the contract of sale, and the lot having been further identified by its street address, the additional words in the contract of sale: 'Buyer and seller waive legal description until time of closing' do not contradict or modify the previous statement that the lot has certain given dimensions so as to constitute a waiver of the defendant's right to insist on being deeded a lot of land of the dimensions stated.

3. Mere proof that the prospective purchaser might in the exercise of diligence have ascertained that the seller was not the owner of a part of the lot involved as stated in the sale contract will not estop him from insisting on the performance thereof according to its terms.

The plaintiff, doing business as Dinkins Coppage & Associates Realty Co., filed suit in the Civil Court of DeKalb County to recover commissions allegedly earned in obtaining the signatures of the seller and buyer (the latter, Calvin A. King being the defendant in this action) to a contract of sale of real property, after which the buyer refused to consummate the purchase.

The sale contract under which the plaintiff's rights accrue, if at all, describes the subject property as follows: 'All that tract of land in the 17th District of Fulton County, Georgia, lot being 100 feet wide facing Greenbrier Road and being 100 feet wide across the rear and being 200 feet deep on both sides, being improved property with a modern brick veneer ranch type dwelling on same and better known as 5915 Greenbrier Road, Fulton County, Atlanta 5, Georgia. The buyer and seller waives legal description until time of closing.' The contract listed a number of improvements to be made by the seller including the following: 'a cypress walk bridge four feet wide with handrails on both sides to be built by the seller from one side of the ditch to the other of ample length to prevent eroding.' The defendant admitted the contract and contended that he was justified in his rescission of the same because of a material and substantial discrepancy in the size of the lot. On the trial, the defendant testified without objection that the plaintiff had told him positively that the lot was 200 feet deep; that the parties viewed the back yard from the house; that there was a ravine (referred to in the contract of sales as a ditch) in the back which was 20 feet deep and 20 feet wide and that beyond this ravine was a little slope with a grove of trees; that the defendant was assured the grove of trees or part of it was in the lot, and it was agreed between the parties that the defendant could place a barbecue pit over there and the owner would build the rustic bridge over to the place where the barbecue pit was to be constructed; that it developed that the lot depth was only 180 feet instead of 200 feet and did not extend beyond the ravine at all except for a small pie shaped piece 7 feet deep at the greatest point and angling back to the ravine; that this was not in the grove of trees and made it impossible to have a barbecue pit, unfeasible to have a bridge, and made the property as a whole unsuitable for the defendant's purposes, for which reason he refused to go ahead with the purchase. The plat introduced in evidence shows the property depth to be 180 feet, and the plaintiff testified that he told the defendant it was approximately 200 feet. No question is raised as to the admissibility of this evidence.

At the conclusion of the testimony a verdict was directed for the defendant. To this ruling, and to the judgment denying the plaintiff's motion for judgment notwithstanding the verdict exception is taken.

Johnson, Hatcher & Meyerson, Atlanta, for plaintiff in error.

Hamilton Douglas, Jr., Haas, White & Douglas, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. It is contended by the plaintiff in error that the description of the property above quoted as contained in the contract of sale shows an intention to sell and purchase by the tract, and that accordingly the case is controlled by Code, § 29-201 as follows: 'In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or entire body, a deficiency in the quantity sold cannot be apportioned. If the quantity is specified as 'more of less,' this qualification will cover any deficiency not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud; in this event, the deficiency is apportionable; the purchaser may demand a rescission of the sale or an apportionment of the price according to relative value.' The plaintiff in error contends that because the description of the property begins with the printed from 'All that tract of...