Franklin v. Jordan, 51898

• Decision Date: 15 March 1976
• Docket Number: No. 2,No. 51898,51898,2
• Citation: 138 Ga.App. 137,225 S.E.2d 721
• Parties: DeJongh FRANKLIN v. H. L. JORDAN et al
• Court: Georgia Court of Appeals

Page 721

225 S.E.2d 721

138 Ga.App. 137

DeJongh FRANKLIN v. H. L. JORDAN et al.

No. 51898.

Court of Appeals of Georgia, Division No. 2.

March 15, 1976.

Smith, Cohen, Ringel, Kohler & Martin, Ralph H. Hicks, T. Michael Hurley, Jr., William D. Barwick, Atlanta, for appellant.

G. Robert Howard, Marietta, for appell

G. Robert Howard, Marietta, for appellees.

Where, 'for and in consideration of the sum of seven thousand . . . dollars in hand paid' appellee Jordan granted to Charles S. Akerman an option to purchase certain described real estate, the right to exercise which terminated December 24, 1967 at 5:00 P.M., and the option provided that it could be exercised by giving written 'notice setting forth the time and place of closing the purchase' and which exercise, according to the terms of the option, made operative the terms and provisions of the contract of sale and purchase attached to and made a part of the option (see Snead v. Wood, 24 Ga.App. 210(1a), 100 S.E. 714; Pritchett v. Dodd, 112 Ga.App. 453(1), 145 S.E.2d 610; Chatham Amusement Co., Inc. v. Perry, 216 Ga. 445, 446(2), 117 S.E.2d 320 and the optionee transfers his right to a third party, DeJongh Franklin, who at the time of closing tendered the required cash 'less the $7,000 paid for the option' as provided in the contract, and a note and security deed for the balance of the purchase price, signed by Franklin, rather than Akerman, as expressly provided in the contract even in the event of a transfer, such tender of the note was not in accordance with the contract (see Franklin v. Jordan, 224 Ga. 727, 164 S.E.2d 718 and a refusal on the part of the optioner seller to accept such tender was not a breach of the contract or a refusal to perform thereunder so as to authorize a rescission of the contract by the transferee Franklin and the recovery of the $7,000 paid as consideration of the option, which was sought in the present action. The $7,000 was consideration for the option and became no part of the purchase price until a proper tender of performance by the purchaser Franklin.

Nothing ruled, under the facts therein, in the following cases requires a different ruling: Yun-Kung Shen v. Bruce, 113 Ga.App. 483, 486, 148 S.E.2d 496: Dell v. Kugel, 99 Ga.App. 551, 109 S.E.2d 532; Gray & Co. v. McDaniel, 73 Ga. 118; McMillan v. Benfield, 159 Ga. 457(4), 126 S.E. 246; Blitch v. Edwards, 96 Ga. 606, 24 S.E. 147.

The trial judge did not err, therefore, in granting the motion for 'summary...