Hubert Realty Co v. Bland

• Decision Date: 21 May 1949
• Docket Number: No. 32431.,32431.
• Citation: 53 S.E.2d 691,79 Ga.App. 321
• Parties: HUBERT REALTY CO. v. BLAND.
• Court: Georgia Court of Appeals

53 S.E.2d 691

79 Ga.App. 321

HUBERT REALTY CO.

v.BLAND.

No. 32431.

Court of Appeals of Georgia, Division No. 1.

May 21, 1949.

Syllabus by the Court.

1. The overruling of defendant's general demurrer to the petition adjudicated that the contract here involved was definite and capable of enforcement and in the absence of an exception thereto became the law of the case.

2. The authority to execute an instrument required by the statute of frauds to be in writing must also be in writing.

3. While all of the partners are living, a partner can convey by deed only his individual interest.

4. Oral ratification alone is not sufficient to give validity to the unauthorized execution of a contract for the sale of real property.

5. A copy is not admissible in evidence when the original is not accounted for.

6. Unless provided therein a power of attorney has no retroactive effect.

The direction of a verdict was correct and none of the court's rulings require a reversal.

Error from Civil Court of Fulton County; Wm. G. Grant, pro hac vice Judge.

Action by Hubert Realty Company against George Bland, Jr., for monies allegedly due by reason of breach of contract to purchase real estate, wherein the defendant filed a counter-claim. There was a judgment for defendant for $500 on a directed verdict, and the plaintiff brings error.

Judgment affirmed.

Hubert Realty Company, a partnership, sued George Bland, Jr., for $280 allegedly due by reason of the breach of a contract to purchase real estate. The petition alleged that defendant deposited $500 earnest money with plaintiffs; that half of it was paid to the owner of the property and that the plaintiffs' brokers retained the other half; that a balance of $365 was due plaintiffs, $280 for commissions and $85 for title investigation; that the commissions were due by reason of a provision of the contract of sale attached to the petition obligating the defendant to pay commissions in the event he, as buyer, breached the contract; that the purchase price of the property was $11,000, $2,000 cash and "$9,000.00 to be first mortgage held by the seller payable over a period of 15 years at 5% interest." The photostatic copy of the contract attached to the petition showed the seller to be Mrs. Sara Wilson Dobes, and was signed "Mrs. Sara Wilson Dobes, by Wm. L. Dobes." The defendant filed a general demurrer to the petition. The defendant filed an answer and counter-claim. The material allegations of the petition were denied. The answer further alleged that the defendant did not execute an original of the contract attached to the petition; that the defendant did sign a contract identical with the one just mentioned but that the seller therein was Dr. William L. Dobes; that defendant signed two originals of the contract and that plaintiffs who represented that they were agents of the proposed seller promised that they would have both of the originals signed by the proposed seller and return to the defendant one of the originals bearing the signature of the proposed seller; that neither of the originals was signed by any purported seller in defendant's presence and defendant had no knowledge other than that which he obtained from the original contract which plaintiffs delivered to him; that plaintiffs delivered him a contract signed by Dr. William L. Dobes as seller, and that defendant believed he was dealing with Dr. Dobes; that defendant had no knowledge that Mrs. Sara Wilson Dobes was the true owner of the property or that her name was signed by her or for her; that plaintiffs converted the $500 earnest money to its own use by retaining one half and paying one half to Mrs. Dobes. There are other allegations in the answer which it is not necessary to set forth as they are subject matter of demurrers and not answer or counterclaim. Judgment was prayed by defendant for $500 and interest. Defendant amended his answer and counterclaim by alleging that the contract sued on was executed by William L. Dobes as an agent for Mrs. Sara Wilson Dobes, as seller, without authority in writing to do so. The plaintiffs demurred to the answer and counter-claim generally and specially. It is not necessary to set forth the special demurrers as will be shown in the opinion. The general demurrer to the petition was overruled and no exceptions filed. The demurrers to the answer and counter-claim were overruled and the plaintiffs filed exceptions pendentelite. On the trial of the case the judge directed a verdict for the defendant for $500 and interest. The plaintiffs except to the overruling of its motion for a new trial and the overruling of the demurrers to the answer and counter-claim.

Miller & Head and Hugh G. Head, Jr., Atlanta, for plaintiff in error.

Hal Lindsay and Joseph E. Buffington, Atlanta, Edward E. Dorsey, Travers Hill, for defendant in error.

FELTON, Judge.

1. While the contract was void and unenforceable because the provision for the first mortgage of $9,000 did not definitely provide how the payments were to be made, whether monthly, annually, semi-annually, or quarterly, Crawford v. Williford, 145 Ga. 550, 89 S.E. 488, the overruling of the general demurrer to the petition necessarily...