Mangum v. Jones

• Decision Date: 11 July 1949
• Docket Number: 16723.
• Citation: 54 S.E.2d 603,205 Ga. 661
• Parties: MANGUM v. JONES.
• Court: Georgia Supreme Court

54 S.E.2d 603

205 Ga. 661

MANGUM v. JONES.

No. 16723.

Supreme Court of Georgia

July 11, 1949

Rehearing Denied July 27, 1949.

Syllabus by the Court.

1. The allegations of the amended petition were sufficient to state a cause of action for specific performance and accordingly the court erred in sustaining the defendant's general demurrer thereto.

2. The special demurrers were not meritorious and the court erred in sustaining them.

On September 9, 1947, by a written sales agreement signed by both of the contracting parties, Joe Jones agreed to sell to W. R. Dunbar, and the latter agreed to buy, subject only to an examination and approval of the seller's title by the buyer's attorney, a described tract of land in Richmond and Columbia Counties, Georgia, at an agreed purchase price of $15,750 in cash to the seller. The seller agreed to pay H Gould Barrett & Company, sales agent, a commission of $750, out of the purchase money when the buyer's attorney approved the title. The contract obligated the seller to deliver possession of the main residence and other buildings on the property to the buyer within thirty days after the sale was closed and the cultivated portion of the land, which was then rented, on January 1, 1948. By a recital in the contract the seller acknowledged receipt of $3000 'earnest money' which he agreed to deposit in escrow with H. Gould Barrett & Company, agent, with the understanding and agreement that it would be returned to the buyer if he (the seller) was unable to deliver good and sufficient title for the property in question. Water charges taxes, and rents for the current year were to be prorated between the parties as of the date the sale was closed. Nintey days were allowed in which to close the sale, with the understanding that the buyer was to secure his own insurance. On March 24, 1948, for a recited consideration of $5 and other valuable considerations, W. R. Dunbar transferred and assigned, in writing, all of his rights in, to, and under the contract to Byron B. Mangum, and directed the seller Jones to execute and deliver to him a warranty deed for the property in question on payment of the purchase money set forth in the contract and on the terms and conditions therein set out.

On December 2, 1948, Bryon B. Mangum brought an equitable suit in the Superior Court of Muscogee County against Joe Jones praying, among other things, that he be required to specifically perform his contract. A copy of the contract and of the transfer and assignment are attached to the petition. The petition after being amended, and in so far as it is material here, alleges that the plaintiff acquired by written transfer and assignment all of the rights which the contract in question originally vested in W. R. Dunbar that he had repeatedly offered to comply with all of its terms and conditions; that he and Mr. Dunbar, the original buyer, had on several occasions offered to pay the defendant the full amount of the purchase money that he is now ready willing, and anxious to do so; and by his petition he made a continuous tender of it, but it was alleged that the defendant has since November 26, 1947, refused to comply with the terms of his contract by accepting the purchase money and conveying the property as his contract obligated him to do. He further alleged that immediately after the contract was made W. R. Dunbar, the original buyer, employed counsel to examine the defendant's title for the land under contract; that the defendant came by the office of Mr. Dunbar's counsel in Augusta, Georgia, on November 4, 1947; that Dunbar's counsel then advised him (the defendant) that the deed records indicated that his wife owned an undivided half interest in the lands under contract; that the defendant then stated that he had in his possession at the time an unrecorded deed from his wife conveying to him her interest in the lands, which deed the defendant then and there exhibited to Dunbar's counsel; that the defendant was then advised by Dunbar's counsel that if he would file the deed for record he was ready to approve his title and close the sale by paying him the purchase price in full; that the defendant declined to file the deed for record and to close the deal at that time, saying that he was then enroute to Philadelphia on a business matter, but would, on his return trip home in a few days, stop off in Augusta, have the deed recorded, and close the matter, but this he failed to do. It is further alleged that Mr. Dunbar, relying upon the contract and his right to have possession of the residence located on the property in controversy, sold his home; that during the latter part of November, 1947, his attorney notified H. Gould Barrett & Company, sales agent, of this and of Dunbar's desire to close the deal for the property involved; that Barrett & Company, after communicating with the defendant, received a letter from him, dated December 1, 1947, stating that he would come to Augusta for the purpose of complying with his contract just as soon as he could get other important business matters attended to. By amendment it was also alleged that the defendant afterwards, on October 14, 1948, filed and had recorded in Columbia County a deed from Mrs. Geneva Jones, his wife, conveying to him all of her interest in the subject lands, this being the deed which he had exhibited to Dunbar's counsel on November 4, 1947, and that the defendant had wilfully withheld said deed from record until that date. The petition and the amendment allege in great detail continuous efforts on the part of Dunbar before the transfer and assignment of the contract, and of the plaintiff afterwards, to have the defendant close the contract of sale according to its terms, and there is attached to the amended petition, as exhibits, various communications between the defendant and his Augusta counsel, which were in turn forwarded by the latter to the plaintiff's counsel, indicating the defendant's intention to close the deal as soon as his business engagements would permit him to do so, among which is a telegram, dated July 27, 1948, sent from the defendant's Columbus office to his counsel in Augusta, Georgia, stating: 'Joe Jones telephoned from Gulfport, Mississippi, that he will go to Augusta with everything necessary to close deal when buyer ready.' It was further alleged that the defendant's counsel handed this communication to the plaintiff's counsel and the defendant was then notified that the plaintiff was ready, willing, and anxious to close the sale by paying the full purchase money, but the defendant for various reasons assigned, principally other pressing business engagements, delayed the closing. On November 2, 1948, the plaintiff sent his Augusta attorney, Mr. Rodney S. Cohen, to Columbus, Georgia, the city in which the defendant resides, for the purpose of prevailing upon him to comply with his contract, but said attorney was unable to locate him there, but later contacted him by telephone in Montgomery, Alabama, and in this telephone conversation the defendant stated that he did not intend to comply with his contract. Finally, and on or about November 24, 1948, the plaintiff sent his Columbus attorney, Mr. B. H. Chappell, to the office of the defendant for the purpose of tendering to him the full purchase money for the land involved, but when Mr. Chappell informed the defendant of the purpose of his visit the defendant stated to him that he would not under any circumstances carry out the contract of sale and that if a tender of the purchase money was actually made to him it would be refused and that he did not propose to and would not carry out the terms of his contract. It was further alleged that the purchase price agreed upon was the fair, reasonable market value of the property in controversy; that the defendant had title for it; and that equity should require him to specifically perform his contract. It was further alleged that the defendant's wife,...