Glenn v. Maddux
| Decision Date | 23 February 1979 |
| Docket Number | No. 57173,57173 |
| Citation | 253 S.E.2d 835,149 Ga.App. 158 |
| Parties | GLENN v. MADDUX et al. |
| Court | Georgia Court of Appeals |
Webb, Young, Daniel & Murphy, David E. Betts, Atlanta, for appellant.
Stanley M. Lefco, Kidd, Pickens & Tate, Charles M. Kidd, Kenneth J. Vanderhoff, Jr., Atlanta, for appellees.
Glenn entered into a contract to sell appellees five residences on Virginia Avenue in Atlanta for a total purchase price of $80,000. The payment terms included a $10,000 cash down payment, assumption of an existing note and security deed to Atlanta Federal Savings & Loan Association in the amount of $49,000, and a purchase money note and security deed for $21,000. Closing was set but Glenn did not appear and appellees sued for breach of the contract. Glenn admitted executing the contract and that he refused to perform thereunder, but denied liability on the ground that he did not intend to be bound unless or until he was released from liability to Atlanta Federal Savings of the $49,000 existing note on the property. He appeals from the grant of partial summary judgment in appellees' favor on this issue, and we affirm.
1. Appellees established a prima facie case for recovery on the contract and it was incumbent upon Glenn to raise a defense. Auerbach v. First Nat. Bank, 147 Ga.App. 288(1), 248 S.E.2d 551 (1978). Glenn relies upon Code § 20-702, which provides that the cardinal rule of contract construction is to ascertain the intent of the parties, urging that there are thus genuine issues of material fact. However, the statute also expressly declares that "If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction."
We agree with the trial court that the intentions of the parties were clearly set out in the contract as follows: "Purchasers shall assume the obligations of an existing real estate note and Deed to Secure Debt covering the above described property, bearing interest at the rate of 10% Per annum and payable to Atlanta Federal Savings and Loan Association in monthly installments of principal and interest in the amount of $537.31 each . . ."
"When a grantee in a sales agreement, as a part of the consideration thereof, assumes and agrees to pay an outstanding indebtedness against the property thus conveyed, evidenced by a note and deed to secure debt, he takes upon himself the burden of the debt or claim secured by the deed, and, as between himself and his grantor, he becomes the principal and the latter merely a surety for the payment of the debt." Zellner v. Hall, 210 Ga. 504(3), 80 S.E.2d 787 (1954).
Glenn stated that the contract was not ambiguous to him, that he had been involved in at least 25 real estate transactions in Georgia, of varying degrees of complexity, and in numerous loan assumption agreements. In light of his testimony, it is highly unlikely that Glenn was unaware of the legal nature of a loan assumption. Even so, relief from the contract based upon the theory...
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...to have considered new facts presented more than five years after a grant of summary judgment. See, e. g., Glenn v. Maddux, 149 Ga. App. 158, 159 (2), 253 S.E.2d 835 (1979) ("Affidavits filed after the order granting partial summary judgment was entered were properly not considered by the t......
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...could have with reasonable diligence discovered the alleged mistake, equitable relief was unavailable to purchaser). 8. Glenn v. Maddux, 149 Ga.App. 158, 159(1), 253 S.E.2d 835 (1979) (concluding that relief from contract, based upon appellant's theory of material unilateral mistake in exec......
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Kovacs v. Cornerstone Nat'l Ins. Co.
...motion for summary judgment, and issues raised therein will not now be considered by this Court. See Glenn v. Maddux, 149 Ga.App. 158, 159(2), 253 S.E.2d 835 (1979); see also Strickland v. DeKalb Hosp. Auth., 197 Ga.App. 63, 64(1), 397 S.E.2d 576 (1990) (holding that an affidavit in opposit......
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Capital Associates, Inc. v. Keoho, 69601
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