James v. Jacobsen

• Decision Date: 25 January 1956
• Docket Number: No. 2,No. 35951,35951,2
• Citation: 93 Ga.App. 233,91 S.E.2d 527
• Parties: Margaret M. JAMES v. E. L. JACOBSEN
• Court: Georgia Court of Appeals

Page 527

91 S.E.2d 527

93 Ga.App. 233

Margaret M. JAMES v. E. L. JACOBSEN.

No. 35951.

Court of Appeals of Georgia, Division No. 2.

Jan. 25, 1956.

Syllabus by the Court

Where, as here, a vendor and a purchaser of real estate enter into a valid, specific contract, and where within the time specified in the contract of sale and before consummation of the sale the vendor executes an instrument guaranteeing that the premises involved are free of termite damage, such latter instrument is nudum pactum and unenforceable.

Elmer L. Jacobsen filed a petition against Margaret M. James, alleging a contract between the parties whereby the defendant agreed to sell, and the plaintiff agreed to purchase, certain real estate in Savannah Georgia. The petition alleges that the contract was made on January 14, 1955. It is alleged that subsequent to the date of the contract, to wit, on February 10, 1955, the defendant made to the plaintiff a written warranty that as of that date the premises were free from any termite infestation and free from any damage due to any previous termite infestation. A copy of the said alleged warranty was attached to the petition. The petition further alleges that by reason of the above warranty the plaintiff 'thereby agreed to purchase the above described property for a purchase price of $15,000, which amount was paid to the defendant and the plaintiff took possession of the property.' It is alleged that the defendant knowingly and wilfully kept from the purchaser the knowledge that the property had, in the past, suffered termite damage and 'that the defendant executed the above described warranty as an inducement for the plaintiff to purchase the above described property, on which warranty your petitioner acted, the defendant knowing the same to be false and untrue.' It is not alleged in the petition that the written warranty was based upon any consideration of any kind either good or valuable. By amendment to the petition, the plaintiff supplied a copy of the original contract between the parties, bearing date of January 14, 1955, which contract shows that the same parties agreed to buy and to sell the same real estate at and for the price of $15,000, which was the price paid. The contract of sale is in writing, and is executed under seal by both parties. $1,000 was paid down as earnest money. The contract contains the following language: 'This contract constitutes the entire agreement between the parties, and shall be binding upon and inure to the benefit of the heirs, executors, administrators and assigns of the respective parties hereto. The contract provides for the closing out and the consummation of the sale within 30 days from January 14, 1955.' Thereafter, before the expiration of that 30-day period, on February 10, 1955, the owner of the real estate allegedly made a written warranty as to the lack of termites or termite damage, past or present, and the purchaser concluded and consummated his sale on February 10, 1955. The petition alleges $1,500 damages by reason of the termite infestation, past or present.

In the original contract of sale dated January 14, 1955, executed under seal, valuable consideration was stated, and there was no mention of damage to property from termites. The contract provides for the closing out of the sale within 30 days from the date of the contract, i. e. February 14, 1955. The sale was consummated on February 10, 1955. The sales contract was the usual form. The instrument regarding the termite situation reads as follows: 'For the purpose of inducing Elmer L. Jacobsen to purchase from me Lots 213, 214, 215 and 216, Southville Ward, Savannah, Chatham County, Georgia, I hereby covenant and warrant that the premises on said lots known in the present house numbering in the City of Savannah as No. 517 Maupas Avenue, are, as of this date, free of any termite infestation and free of damage due to any previous termite infestation.

'Witness my hand and seal this February 10th, 1955. (s) Margaret May James'. The signature to the instrument was properly notarized. General and special demurrers were filed to the petition as amended all of which were overruled by the trial judge. The case is before the Court of Appeals on this ruling.

Oliver, Davis & Maner, Savannah, for plaintiff in error.

W. J. Richardson, Jr., Savannah, for defendant in error.

GARDNER, Presiding Judge.

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