Crim v. Southern Realty &. Trust Corp., (No. 18649.)

• Decision Date: 30 August 1928
• Docket Number: (No. 18649.)
• Parties: CRIM. v. SOUTHERN REALTY &. TRUST CORPORATION.
• Court: Georgia Court of Appeals

38 Ga.App. 502

144 S.E. 342

CRIM.

v.SOUTHERN REALTY &. TRUST CORPORATION.

(No. 18649.)

Court of Appeals of Georgia,

Division No. 2.

Aug. 30, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Action by the Southern Realty & Trust Corporation against F. M. Crim. Judgment for plaintiff, defendant's certiorari was overruled, and defendant brings error. Reversed.

Key, McClelland & McClelland, of Atlanta, for plaintiff in error.

Paul S. Etheridge, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. [1-3] 1. Where two persons enter upon a written contract, whereby one agrees to sell, and the other agrees to buy, a described tract of land, and the contract remains wholly executory, in that the agreed purchaser has never been put in possession, or taken a conveyance, and where the contract of purchase and sale does not contain a promise on the part of the vendee to pay the purhase price, in the event either of such contracting parties refuses to comply, the other is limited to a right to proceed, either by an equitable action for specific performance, or by an action at law for damages for breach of the contract; and in such a case the vendor cannot maintain an action at law against the vendee for the purchaseprice, even though he may have tendered a conveyance. Reed v. Dougherty, 94 Ga. 661, 20 S. E. 965. Where, however, as here, the executory contract of purchase and sale does contain a promise upon the part of the vendee to pay the purchase money, the vendor may maintain his action therefor at law, but in so doing, in order to ripen and make absolute the obligation of the vendee, he must first as a condition precedent to the institution of the action, offer performance upon his own part in accordance with the terms of the contract. Morris v. McKee, 96 Ga. 611, 24 S. E. 142; Johnson v. Coffey, 29 Ga. App. 407, 116 S. E. 125; Stanaland v. Chastain, 36 Ga. App. 581, 137 S. E. 409.

2. In the instant suit for the purchase price of land, based on an executory contract of purchase and sale, the vendor failed to show such a tender of performance on his part as would give effect to the obligation of the vendee to pay the purchase money, since the only prior offer of performance on the part of the vendor consisted of a tender of a deed to the vendee and another person jointly. Consequently the evidence does not authorize the verdict in favor of the plaintiff for the purchase money, and the judge...