Farmer v. Argenta, 69716

• Decision Date: 01 May 1985
• Docket Number: No. 69716,69716
• Citation: 174 Ga.App. 682,331 S.E.2d 60
• Parties: FARMER v. ARGENTA.
• Court: Georgia Court of Appeals

Page 60

331 S.E.2d 60

174 Ga.App. 682

FARMER v. ARGENTA.

No. 69716.

Court of Appeals of Georgia.

May 1, 1985.

Thomas L. Washburn III, Atlanta, for appellant.

Emory A. Schwall, Karl M. Terrell, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Suzanne Farmer brought this action as seller to enforce a real estate sales contract. The trial court granted summary judgment to Argenta, holding that the contract was unenforceable because the financing contingency clause was too vague and indefinite, and thereby lacking in mutuality, to be enforceable. On appeal, appellee Argenta concedes that the cases relied upon by the trial court in its ruling, Potts v. Smith, 134 Ga.App. 737, 215 S.E.2d 697 and Scott v. Lewis, 112 Ga.App. 195, 144 S.E.2d 460, and their rationale have been overruled by the Supreme Court in Brack v. Brownlee, 246 Ga. 818, 273 S.E.2d 390; and see Tuggle v. Wilson, 248 Ga. 335, 282 S.E.2d 110 and Koets, Inc. v. Benveniste, 169 Ga.App. 352, 312 S.E.2d 846, affirmed in Benveniste v. Koets, Inc., 252 Ga. 520, 314 S.E.2d 912.

However, on appeal, Argenta advances another reason that the trial court's ruling should be affirmed. Argenta's pleadings and affidavit in support of his motion for summary judgment, which appellant Farmer did not controvert either by pleading or appearance, show that he first executed the form sales contract and when it was returned to him, signed by appellant, it contained some added special stipulations. One of these provided: "Buyer agrees to allow seller to remain in property rent free for 30 days after closing. Then 30 days after closing seller will pay buyer rent in the amount of the mortgage payment, taxes and insurance included if escrowed in an amount not to exceed $300.00 per month as long as necessary until seller finds another home." Argenta averred that a $500 check he had previously written for another sale that fell through, was deposited in escrow by the real estate agent, and he proceeded to attempt to obtain financing per the agreement.

However, he refused to comply with the lending body's demand that the house be painted prior to approval of the loan and later saw the appellant painting the house in the rain. Concerned about the potential damage caused by this, and by this time feeling that he was being forced to purchase the house under terms and conditions he did not want, he decided not to pursue the sale. Argenta alleges that the special stipulation quoted above amounts to the grant of a leasehold to the appellant which could potentially exceed her natural life, and which is inconsistent with and breaches the agreement to grant to him a warranty deed, renders appelllant's performance in the sale of the land impossible, constitutes a failure of consideration, and seeks to compel him to take a defective title. The arguments are chiefly equitable and deal with the law involving title to land. See e.g., Horne v. Rodgers, 113 Ga. 224, 228, 38 S.E. 768 and Mrs. E.B. Smith Realty Co. v. Hubbard, 130 Ga.App. 672, 675, 204 S.E.2d 366.

However, we find a plainer reason why this contract is unenforceable: the special stipulation is simply too indefinite and uncertain to enforce. This is not the same thing as the absence of mutuality which the Supreme Court refused to find in Brack, supra. In that case, the Supreme Court held the payment of an amount in escrow provided consideration for the sales agreement, so that "[m]utuality is not required where there is consideration other than mutual promises...." Brack, supra, 246 Ga. p. 819, 273 S.E.2d 390.

Although the two were equated in Brack, the defense of vagueness and indefiniteness is not necessarily the same as a lack of mutuality of obligation, the former being in this case mainly a question of interpretation and ascertaining intent of the parties (OCGA §§ 13-3-1; 13-3-2; Cox Broadcasting Corp. v. Nat. Collegiate Athletic Ass'n, 250 Ga. 391, 395, 297 S.E.2d 733, the latter having most often to do with consideration (OCGA § 13-3-40 et seq.; see Brack, supra). The Supreme Court in Brack addressed only the mutuality of the contingent financing clause and did not imply that all real estate sales contracts, however vague and indefinite in some material part, will be enforceable.

In this case, the mutuality of the contract is not in question, but part of it is so uncertain, indefinite and vague as to render the whole of it unenforceable. The contract provision that the seller would be allowed to remain in the house for rent not to exceed $300 per month "as long as necessary until seller finds new home," is uncertain by its terms. The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon. Touche Ross & Co. v. DASD Corp., 162 Ga.App. 438, 292 S.E.2d 84. A promise, to be enforceable, must be sufficiently definite as to both time and subject matter. Parks v. Atlanta News Agency, 115 Ga.App. 842, 844, 156 S.E.2d 137. In this case the parties have agreed to give the seller a leasehold (see Williams v. J.M. High Co., 200 Ga. 230, 235, 36 S.E.2d 667 for an indefinite time, or a...