Fraser v. Jarrett
| Decision Date | 16 May 1922 |
| Docket Number | 2810. |
| Citation | 112 S.E. 487,153 Ga. 441 |
| Parties | FRASER v. JARRETT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Under our statute of frauds, a contract for the purchase of lands need only be signed by the party against whom the contract is sought to be enforced.
When a buyer submits a written offer to the owner of lands for the purchase thereof, which in all respects meets the requirements of the statute of frauds, which offer the owner declines to accept, unless a material change in one of the terms thereof is made, which change is made in such offer by a real estate agent negotiating the sale, without authority from the buyer, after which the owner in writing accepts the offer so changed, and after such change and acceptance the buyer orally confirms and ratifies said change so made by such agent, the contract of sale embraced in such offer becomes complete and binding upon the owner by her written acceptance of the terms of such offer, although the offer was signed for the plaintiff under an oral authorization only and the confirmation by the plaintiff of the same as changed was in parol, especially when the latter brings suit to enforce the contract.
In order to entitle the plaintiff to specific performance of a contract for the purchase of land, the purchaser must make an unconditional tender of the purchase money due; but tender by the vendee before suit is excused, if the vendor, by conduct or declarations, proclaims that, if a tender should be made acceptance would be refused.
An instruction to the jury that, if a tender was made without any condition, except the request that the defendant comply with the contract of sale, the same would be certain and unconditional, and entitled the plaintiff to a verdict for specific performance, was erroneous, but under the facts of this case does not require the grant of a new trial.
A demurrer to the whole of an answer is properly overruled, if it raises any issuable fact to be tried by the jury.
A verdict finding that the plaintiff is entitled to specific performance, and to receive rents from a given date, in the amount of $2,205.93, less operating expenses covering the period for which such rents were given, is void for uncertainty, so far as the money part of the verdict is concerned; the jury failing to find the amount of such operating expenses, and there being nothing in the pleadings and evidence by which the same can be fixed.
Surplusage in the verdict can be disregarded, and thus save it from the taint of any ambiguity or uncertainty brought about by such rejectable surplusage; but we cannot say in this case that any part of this verdict is surplusage.
Additional Syllabus by Editorial Staff.
A buyer's offer must be accepted by a seller of land unequivocally, unconditionally, and without variance of any sort.
There must be mutual assent by the parties to a sale of land, and they must assent to the same thing in the same sense.
Where an offer to purchase real estate was declined by the owner who signified her willingness to sell if a material alteration was made in the offer, and this was done, and the offer as changed then accepted, the acceptance was unconditional and unequivocal.
In a purchaser's suit for specific performance, instructions as to the authority of her agent to make a change in the offer submitted to defendant, and as to what would constitute a ratification of such change, were harmless, where defendant signed the contract as changed, and was bound as a matter of law.
Under Civ. Code 1910, § 4265, the construction of a contract is a question for the court, unless some matter of fact is involved, and an instruction that it is the duty of the jury and the court to so construe the contract as to bind both parties is inaccurate.
In a suit for specific performance, an inaccurate instruction, under Civ. Code 1910, § 4268, subd. 3, providing that the construction upholding a contract is to be preferred, did not require a new trial, where the court properly construed the contract, and plaintiff under the facts was entitled to a decree.
Where the only error on the trial of a suit for specific performance was in the verdict, which awarded rents to plaintiff, less operating expenses, without finding the amount thereof, the Supreme Court, under Civ. Code 1910, § 6205, may grant a new trial, confined to an accounting.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Suit by Mrs. M. B. Jarrett against Mrs. Ida D. Fraser. Judgment for plaintiff, and defendant brings error. Reversed in part, and affirmed in part, with directions.
Mrs. M. B. Jarrett filed her petition against Mrs. Ida D. Fraser for specific performance of this contract, to wit:
Special Stipulations.
Conditional Earnest Money Receipt.
Petitioner had the title to said property examined by her attorney and the same was found good. She, on April 28, notified defendant that she was ready to close out the sale. After several attempts on the part of Evans & Dodd, of herself, and her attorney to arrange a meeting with defendant, for the purpose of closing the sale, defendant requested a conference with W. S. Dodd, of said firm, and petitioner's attorney. This conference was had on May 8, 1920. Defendant and her attorney at said conference stated, that before she would close the sale with petitioner, a bond would be required of petitioner to pay in full, on January 1, 1921, the loan of $4,000 to Lilla M. Ayer. Then and there petitioner, through her attorney, made an unconditional tender of the sum of $7,000 in United States currency to defendant, being the amount of cash payment provided for in the above contract, and then and there tendered her three notes for the deferred payments therein provided for. Defendant declined to accept the money or the notes, and stated that she would not close the sale, unless a bond for the payment, on January 1, 1921, of the loan to Lilla M. Ayer, was executed. Subsequently, through her attorney, she notified defendant that, although there was no provision in the contract of sale requiring it, she would sign a written agreement with defendant to pay the loan of $4,000 on the first day on which a payment on the principal of said loan could be made by the terms of the loan due, to wit, on April 28, 1921. Defendant was again required to close the sale on these terms, and again refused.
Petitioner has been offered $35,000 for this property, and is informed and believes an offer of the same amount had been made to the defendant since the execution of the contract of sale between them. This is the reason why the defendant refuses to close the sale. Petitioner duly authorized her agent, H. H Jarrett, to sign her name to said contract, and has duly ratified the execution of said contract. Petitioner is ready, able, and willing to comply with the terms of said contract, and is keeping $7,000 on current deposit in bank for the purpose of making said cash payment. Said sum is not drawing any interest, and she is being damaged financially the amount of the interest which she could...
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