McLoon v. McLoon, 22446

• Decision Date: 07 May 1964
• Docket Number: No. 22446,22446
• Citation: 136 S.E.2d 740,220 Ga. 18
• Parties: Tot McLOON v. W. E. McLOON et al.
• Court: Georgia Supreme Court

Page 740

136 S.E.2d 740

220 Ga. 18

Tot McLOON v. W. E. McLOON et al.

No. 22446.

Supreme Court of Georgia.

May 7, 1964.

Syllabus by the Court

1. (a) A petition for reformation of a written contract will lie where by mistake of the scrivener and by oversight of the parties, the writing does not embody or express the real contract between the parties.

(b) The allegation that plaintiffs tendered to defendant $3,018.00 in cash for the purchase price of the land in accordance with the agreement between plaintiffs and defendant meets the requirement that before equity will decree specific performance of a contract for the sale of land, there must be an absolute and unconditional tender of the purchase price.

2. (a) Where the vendor by declaration or conduct proclaims that if a tender should be made its acceptance would be refused, tender by the vendee before suit is not necessary. Equity will not require a useless formality.

(b) The facts and circumstances of this case were such that mere inadequacy of consideration would not justify the court in refusing a decree of specific performance of the option.

The exception is to the judgment overruling the general demurrer to the petition brought for reformation and specific performance of an option to buy land, and to the denial of a motion for new trial and judgment n. o. v. of the defendant.

Barrie L. Jones, Alma, Sumner & Boatright, Douglas, for plaintiff in error.

Gordon Knox, Jr., Hazlehurst, for defendants in error.

MOBLEY, Justice.

1. The petition alleges that on October 16, 1958, the defendant, Tot McLoon, executed and delivered an option to W. E. and Edith McLoon (the said W. E. McLoon hereinafter referred to as plaintiff) to purchase a described tract of land for $3,018 within two years from date of execution; that on October 10, 1960, plaintiff and defendant orally agreed that the option would be extended for an additional two years from expiration of the original option, or to October 16, 1962, and agreed that Mrs. C. W. White would prepare the extension agreement; that the scrivener in preparing the agreement through inadvertence erroneously and unknown to both parties stated the purchase price as $3,081 rather than $3,018 as they had greed, and stated the expiration date of the option as October 1, 1962, when the date agreed upon was October 16, 1962, or two years from date of the expiration of the original option and that the option is, by mutual mistake, contrary to the intention of both parties.

'A petition for reformation of a written contract will lie where by mistake of the scrivener and by oversight of the parties, the writing does not embody or fully express the real contract of the parties.' Williams v. Hudgens, 217 Ga. 706, 710(3), 124 S.E.2d 746, 750 and cases cited. See also Code § 37-205, 37-207, 37-208, 37-215. Obviously, the petition meets the stated requirements for reformation of the option.

However, defendant contends an action for specific performance is not alleged because of failure to allege an unconditional tender of the amount due under the option. See Jolly v. Jones, 201 Ga. 532(2), 40 S.E.2d 558, and cases cited as to the requirements of tender. Also see Cummings v. Johnson, 218 Ga. 559(6), 129 S.E.2d 762. As to tender, the petition alleged:

'On October 13, 1962, the plaintiffs tendered to said defendant the sum of $3,018 in cash for the purchase price of said tract of land in accordance with the agreement made between plaintiffs and said defendant, and at said time also tendered to defendant a warranty deed conveying said property to plaintiffs by defendant in accordance with the agreement between the parties. That at said time said defendant refused to accept the $3,018 cash tendered to him and refused to execute said warranty deed.' The allegations that 'on October 13, 1962, plaintiffs tendered to said defendant the sum of $3,018 in cash for the purchase price of said tract of land in accordance with the agreement made between plaintiffs and said defendant' plainly and unequivocably alleges an unconditional tender of $3,018 in cash, the amount allegedly due. The further allegation that at the same time he tendered a warranty deed does not make the tender conditional. The cases of Jolly v. Jones, 201 Ga. 532(2), 40 S.E.2d 558, and Smith v. Bank of Acworth, 218 Ga. 643, 129 S.E.2d 857, relied upon by the defendant are distinguishable on their facts. In Jolly the plaintiff alleged a tender in general terms but 'the specific averments' negatived the conclusion. In Smith v. Bank of Acworth the petition alleged that the plaintiff tendered a sum of money 'in exchange for fee simple title to the property.'

The court properly overruled the general demurrer to the petition.

2. Defendant contends that the evidence demanded a finding that the plaintiff did not make an unconditional tender of the amount due under the contract and that there was inadequacy of consideration and that the court erred in denying a judgment n. o. v.

(a) 'Before equity will decree specific performance of a contract for the sale of land, there must be an absolute and unconditional tender of the purchase price. An offer to pay the purchase price on delivery of a properly executed deed is not an unconditional tender.' Cummings v. Johnson, 218 Ga. 559(6), 129 S.E.2d 762; Terry v. Keim, 122 Ga. 43, 49 S.E. 736; Henderson v. Willis, 160 Ga. 638, 128 S.E. 807; Jolly v. Jones, 201 Ga. 532, 40 S.E.2d 558; Heath v. Miller, 205 Ga. 699, 54 S.E.2d 432; Morgan v. Mitchell, 209 Ga. 348, 72 S.E.2d 310. While recognizing that well settled principle of law it is equally well established that 'where the vendor, by his declaration or conduct, proclaims, that if a tender should be made, its acceptance would be refused, tender by the vendee before suit is unnecessary. Equity will not require a useless formality.' Miller v. Watson, 139 Ga. 29(2), 32, 76 S.E. 585, 586. See also Ansley v. Hightower, 120 Ga. 719(4), 48 S.E. 197, and cases cited; Irvin v. Locke, 200 Ga. 675, 38 S.E.2d 289; Lively v. Munday et al., 201 Ga. 409(3), 40 S.E.2d 62, 173 A.L.R. 1295. Plaintiff testified that...