Mitchell v. Head, A90A0466
| Decision Date | 20 April 1990 |
| Docket Number | No. A90A0466,A90A0466 |
| Citation | 195 Ga.App. 427,394 S.E.2d 114 |
| Parties | MITCHELL v. HEAD et al. |
| Court | Georgia Court of Appeals |
H. Pierre, Jr., for appellant.
Floyd, Jones & Wear, Serena L. Sparks, R. David Ware, for appellees.
Plaintiff-seller Mitchell d/b/a Mitchell, Mitchell & Associates, Inc., appeals the grant of summary judgment to Mr. and Mrs. Head, the purchasers in this dispute about the price of a home.
The Heads entered into a contract to buy the real property from Mitchell. The written contract contained a sales price of $85,250 and a provision stating that it constituted the sole and entire agreement between the parties, that no modification would be binding unless attached to the contract and signed by all parties, and that no representation, promise, or inducement not included in the contract would be binding on the parties. The settlement agreement at closing reflected the same sales price.
Following closing, Mitchell, in her business capacity, filed a "Complaint for Breach of Contract" against the Heads. She alleged they had contacted her about building a house for $110,000 and because of certain circumstances, including the fact that $85,250 was the maximum allowed by the lender, the contract and closing documents stated such amount but the parties had a separate oral agreement for the balance of $24,740 which was inadvertently not reduced to writing. The Heads answered, denying the existence of the oral agreement and any obligation greater than $85,250. They counterclaimed for damages from latent defects and faulty workmanship.
Mitchell amended her suit to assert that when the deal was made, defendants had no intention of paying the agreed price of $110,000 and so had fraudulently induced her to contract. She did not seek to rescind the written sales agreement but rather to enforce the oral one.
The trial court granted summary judgment to the Heads on plaintiff Mitchell's claim.
"Any contract for sale of lands, or any interest in, or concerning lands" must be in writing and signed. OCGA § 13-5-30(4); Alsobrook v. Taylor, 181 Ga. 10(2), 181 S.E. 182 (1935). The alleged oral agreement was not actionable under the Statute of Frauds, OCGA § 13-5-30. Appellant did not demonstrate in rebuttal to defendants' showing on summary judgment that there was such detrimental reliance on this alleged oral agreement so as to negate a Statute of Frauds defense. Compare Scott v. Lumpkin, 153 Ga.App. 17, 264 S.E.2d 514 (1980).
The alleged oral agreement as a parol variance or modification of the written sales contract does not rescue appellant. There is a merger clause, and appellant has elected not to rescind the contract. " ...
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...248 Ga. App. 526, 528, 545 S.E.2d 705 (2001); Ben Farmer Realty Co., 212 Ga.App. at 75, 441 S.E.2d 421 (citing Mitchell v. Head, 195 Ga.App. 427, 428, 394 S.E.2d 114 (1990), and Am. Demolition v. Hapeville Hotel Ltd. P'ship, 202 Ga.App. 107, 109, 413 S.E.2d 749 Defendants contend that the m......
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Jones v. Cartee
...two options: (1) affirm the contract and sue for breach; or (2) rescind the contract and sue in tort for fraud. Mitchell v. Head, 195 Ga.App. 427, 428, 394 S.E.2d 114 (1990); Potomac Leasing v. Thrasher, 181 Ga.App. 883, 886(2), 354 S.E.2d 210 (1987). "[D]epending upon which of the two acti......
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Ben Farmer Realty Co. v. Woodard, s. A93A2588
...terms and is subject to any defenses which may be asserted by the other party based on the terms of the contract. Mitchell v. Head, 195 Ga.App. 427, 428, 394 S.E.2d 114 (1990); Weaver, supra 191 Ga.App. at 615, 382 S.E.2d 380; American Demolition v. Hapeville Hotel Ltd. Partnership, 202 Ga.......
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American Demolition Inc. v. Hapeville Hotel Ltd. Partnership, A91A1385
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