Franklin v. McCormick
| Decision Date | 18 January 1935 |
| Docket Number | 10184. |
| Citation | 178 S.E. 441,180 Ga. 170 |
| Parties | FRANKLIN v. McCORMICK et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 22, 1935.
Syllabus by Editorial Staff.
Petition held to state cause of action for specific performance of contract giving petitioner option to purchase land.
Petition for specific performance of contract giving petitioner option to purchase land held to show that payments extending option period were timely made by petitioner.
Petition for specific performance of contract giving petitioner option to purchase land held not to show that performance of terms of contract and option on part of defendant who executed option was impossible.
Petition for specific performance of contract giving petitioner option to purchase land held to show tender by petitioner in accordance with terms of option.
In suit for specific performance of contract giving plaintiff option to purchase land, plea of fraud on part of plaintiff in procuring contract held properly stricken.
Error from Superior Court, Burke County; A. L. Franklin, Judge.
Petition by D. Ford McCormick against W. H. Franklin and others. To review a judgment overruling a demurrer to the petition and striking his special plea, named defendant brings error.
Affirmed.
Error is assigned upon the judgment overruling a demurrer to the petition as amended and the striking of a special plea of defendant Franklin. The suit is for specific performance of a contract shown by the following instrument:
"Georgia Bibb County. This agreement, made and entered into this the 29th day of May, 1931, by and between W. H. Franklin of Burke County, Ga., and D. Ford McCormick of Staunton Virginia, witnesseth: That the said W. H. Franklin for and in consideration of the sum of two hundred fifty dollars ($250.00) cash in hand paid, the receipt whereof is hereby acknowledged, does grant, bargain, and sell unto the said D. Ford McCormick the sole right to drill and prospect upon the property of the said W. H. Franklin in Washington County, Georgia, consisting of four hundred ninety-nine and one-half acres, more or less, and known as the Captain J I. Thomason place in Deepstep District 99 in Washington County, Georgia; it being the intent of this agreement to grant all the rights herein granted as to all the land of the said W. H. Franklin in said Washington County, Georgia, whether specifically included in the foregoing description or not. And the said W. H. Franklin does grant, bargain, and sell to the said D. Ford McCormick the right and option to purchase the whole of said property at and for the sum of fourteen thousand dollars ($14,000.00) to be paid in cash upon the exercise of this option and delivery of the deed as herein provided, and/or the right to purchase any number of acres of said land that the said D. Ford McCormick elects to purchase at and for the sum of forty dollars per acre for all acceptable clay lands, and thirty dollars per acre for all other lands which the said D. McCormick may so elect to purchase. The question as to which are acceptable clay lands is to be determined by the result of the drilling by the said D. Ford McCormick and his heirs, representatives, and assigns; and the judgment of the said D. Ford McCormick as to what are acceptable clay lands shall be accepted as final. This option is to terminate at the expiration of six months from the date hereof; but it is agreed that if the said D. Ford McCormick shall pay to the Atlanta Joint Stock Land Bank for the said W. H. Franklin two hundred ten dollars that will be due by the said W. H. Franklin to said bank on August 10, 1931, then this option shall be extended for an additional six months. And if the said D. Ford McCormick shall pay to the said bank two hundred ten dollars, due by the said W. H. Franklin on October 10, 1932, this option shall be extended for another additional six months. If while this option is in force and effect the said D. Ford McCormick shall notify the said W. H. Franklin of his election to exercise this option and purchase either all or any part of said property, the said W. H. Franklin binds himself to make to the said D. Ford McCormick good and sufficient title in fee simple by warranty deed to the property so purchased, upon the payment of the purchase-price in cash. It is expressly understood and agreed that if the said D. Ford McCormick shall exercise this option to purchase the whole or any part of said property, all sums paid by the said D. Ford McCormick hereunder as a consideration for this option shall be credited upon and reduce the amount of said purchase-price. It is further distinctly understood and agreed that this option is binding upon the heirs, representatives, and assigns of the said W. H. Franklin, and shall be assignable by the said D. Ford McCormick to inure to the benefit of his heirs, representatives, and assigns. In witness whereof, the said W. H. Franklin has hereunto set his hand and affixed his seal and delivered these presents the day and year above written.
Anna M. West. W. H. Franklin [L.S.]
Carrie Belle Collins, Notary Public, Bibb County, Ga."
The petition as amended alleged that the sum of $250 was paid in cash, and that the installment payments mentioned in the instrument were "paid $210 to the Atlanta Joint Stock Land Bank on September 15, 1931, by check; then again to obtain the next extension petitioner paid to the Atlanta Joint Stock Land Bank, on April 6, 1932, the sum of $210 by check; and again to obtain the next extension petitioner paid to the Atlanta Joint Stock Land Bank the sum of $210 by check on October 6, 1932." Petitioner alleges that the first payment made in order to extend said contract was due to the Atlanta Joint Stock Land Bank on October 10, 1931, the original contract erroneously reciting that it was due by the said W. H. Franklin on August 10, 1931. Each and all of the several payments herein alleged were made to the Atlanta Joint Stock Land Bank before any of said payments were due by said W. H. Franklin to the said Atlanta Joint Stock Land Bank, and were made while said option was of full force and effect and within the time provided in the contract.
As to tender it was alleged: ...
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