Green v. Zaring
| Decision Date | 26 May 1966 |
| Docket Number | No. 23469,23469 |
| Citation | 149 S.E.2d 115,222 Ga. 195 |
| Parties | Golden GREEN v. John H. ZARING, Jr. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Count one failed to allege a cause of action for specific performance of an alleged agreement to convey real estate.
2. Count two also failed to allege a cause of action for damages for breach of such agreement.
Johnson & Hayes, Herbert Johnson, Randolph Hayes, Atlanta, for appellant.
Smith, Ringle, Martin & Lowe, Hoke Smith, Atlanta, for appellee.
The sustaining of general demurrers to a petition seeking specific performance of an alleged contract, or in the alternative, damages for its breach, is for review. The petition, in two counts, was filed by Golden Green against John H. Zaring, Jr., in the Superior Court of Fulton County. The provisions of the agreement entered into by Green, Zaring, and a third party referred to herein as 'Brown,' insofar as material here, are those which follow.
Zaring is the owner of a described 43.3 acre tract of land, and Green is a general contractor engaged in the business of developing and improving real estate. They and Brown, who was instrumental in getting them together in this undertaking, desire to form a corporation through which this land will be developed and improved 'with apartment buildings and related structures in accordance with the covenants and agreements' hereinafter set forth.
In consideration of the mutual covenants of the parties, they agree as follows.
A corporation shall be formed with specific powers to deal generally in all types of property, to acquire, develop, improve, mortgage, pledge, encumber and sell the same.
Green agrees to pay personally the legal expense involved in forming the corporation, and to advance for the corporation all monies required for architectural and engineering expense necessary to obtain building permits. He shall be repaid by the corporation from 'loans obtained to develop and improve' the land. Green also agrees to pay personally 'all costs of construction in excess of the construction loan or loans.'
Zaring, upon the formation and authorization of the corporation to do business, agrees to convey fee simple title to the above mentioned land to the corporation, which shall hold title for the purposes set forth in this agreement.
Green further agrees to serve as 'general contractor in the developing and improving of said land with apartment buildings and related structures without salary from the corporation,' and also 'to use his ability to obtain the necessary loans' for the corporation 'at the best obtainable rates in order for the corporation to develop and improve said land.'
The corporation shall assume obligation for all costs and expenses required in developing and improving the land 'with apartment buildings and related structures.' Where required by any lender of monies to the corporation, Green and Zaring agree to personally endorse 'any note evidencing any such loan.'
The corporation shall develop and improve the land in three stages, as suggested by the architect to be employed to prepare the plans and specifications, with only the title to each divided tract to be pledged as security for 'a loan or loans' for development and improvement of that particular tract.
The agreement also contained various other provisions relating to such matters as continuance of an easement over a part of the property and issuance of corporate stock. None of these warrant further reference here.
Count 1 of the petition alleged that Zaring is capable of complying with the terms of this agreement but has failed and refused to convey the property in accordance therewith and has repudiated the agreement in its entirety.
It also alleged that Green, in compliance with the agreement, has performed as fully as possible its conditions by (a) securing the services of an attorney to organize the corporation, which was in fact organized; (b) incurring liability for services of the attorney in organizing the corporation, which is capable of taking title to the property of Zaring pursuant to the agreement; (c) arranging for the required financing of the units proposed to be constructed upon Zaring's property; and (d) expending his time and effort in his professional capacity as general contractor without compensation.
It further alleged that the agreement is clear and unambiguous, was entered into for adequate consideration, and is subject to...
To continue reading
Request your trial
-
Homart Development Co. v. Sigman
...conjecture, because it might be guilty of erroneously decreeing what the parties never intended or contemplated. Green v. Zaring, 222 Ga. 195, 149 S.E.2d 115, 117-118 (1966); Williams v. Manchester Building Supply Co., 213 Ga. 99, 97 S.E.2d 129 (1957). The definite and specific statement of......
-
Southern Prestige Homes, Inc. v. Moscoso
...v. Downer, 218 Ga. 235, 241(5), 127 S.E.2d 359 (1962), and no question exists about the parties' obligations. See Green v. Zaring, 222 Ga. 195, 198(1), 149 S.E.2d 115 (1966). In this case, the agreement is a complete document that obligates Prestige to build a house for Moscoso for a certai......
-
Tuggle v. Wilson
...As we read the contract in question, performance of part is no cure or remedy for the vital requirement of certainty. Green v. Zaring, 222 Ga. 195, 198-199, 149 S.E.2d 115; Grizzle v. Gaddis, 75 Ga. 350; Thomas v. Harris, 127 Ga.App. 361, 363, 193 S.E.2d 260. Any contract, including one for......
-
Patel v. Gingrey Associates
...agreement not to be "unreasonable" does not convey with reasonable certainty what Mr. Gingrey was obligated to do (see Green v. Zaring, 222 Ga. 195, 198, 149 S.E.2d 115), and whether there had been performance. Bagwell-Hughes Inc. v. McConnell, 224 Ga. 659, 662, 164 S.E.2d 229. This agreeme......