Mitchell v. Owen
| Citation | 127 S.E. 122,159 Ga. 690 |
| Decision Date | 20 January 1925 |
| Docket Number | 4274. |
| Parties | MITCHELL v. OWEN. |
| Court | Supreme Court of Georgia |
On Rehearing, February 28, 1925.
Syllabus by the Court.
The ground of the petition for certiorari designated (a) contends that the Court of Appeals erred "in holding and in deciding that where the plaintiff sued the defendant for the purchase price of land bargained to him, and the defendant pleaded that he had resold the land at a profit and had tendered the full balance due on the contract, and that the plaintiff had at that time refused to make him a deed, the defendant could recoup as against the purchase price the difference between the price he was to pay and the price at which he resold it, notwithstanding it undisputedly appeared that the defendant had entered into and had continuously maintained possession of the land up to the time of the trial, and it also undisputedly appeared that at the time the contract of sale was made the seller had no knowledge or notice that a contract of resale was contemplated, but was informed to the contrary by the purchaser." An examination of the record fails to verify the accuracy of the statements in this ground. It is therefore without merit.
The ground of the petition designated as (b) complains that the Court of Appeals erred "in refusing to follow, as precedent binding on the Court of Appeals, the decision of the Supreme Court on certified question in King v Brice, 145 Ga. 65 (3), 88 S.E. 960, holding that the measure of damages for a breach of contract of sale of land is the difference between the contract price and the market value of the land at the time of the breach, and erred in holding (if under the proven facts the defendant could recoup at all or more than normal damages) the defendant's recoupment was not limited to the difference between the contract price and the market value of the land at the time of the breach." It was not error to fail to apply without qualification, the rule laid down in the above-cited case.
The ground of the petition designated as (c) complains that the Court of Appeals erred "in holding and deciding that it was not reversible error for the trial judge to charge the jury that, if the plaintiff breached the contract by refusing to make a deed at the time, he was obligated by the contract to make it, but later tendered the deed; the measure of damages which the defendant might recoup against the plaintiff's action was the difference between the value of the land on the date that the deed should have been made and its value at the time when the plaintiff tendered the deed." Under the facts of this case this rule, without qualification, was erroneous. and requires a reversal of the judgment refusing a new trial.
In the ground of the petition designated (d), it is contended that the Court of Appeals erred "in holding and deciding that, where the movant in a motion for new trial (the plaintiff in error here) assigned error upon an excerpt from the charge which contained certain propositions which were correct and certain propositions which were erroneous, the assignment of error was not sufficient within the purview of the rule stated in Miller v. State, 121 Ga. 135, 48 S.E. 904, and Anderson v. Southern Ry. Co., 107 Ga 500, 33 S.E. 644, notwithstanding the movant added to his general assignment of error further assignments specifically pointing out wherein the instruction excepted to was erroneous." This ground is not borne out by the record and is without merit.
"In considering the question of the grant of the petition for certiorari, and, if granted, in disposing of the case, this court will only consider the questions raised in such petition."
Additional Syllabus by Editorial Staff.
Where there is contract for sale of land, some one or more features may be breached without breaching entire contract.
Certiorari to Court of Appeals.
Action by W. H. Mitchell against E. M. Owen. Judgment for defendant was affirmed by the Court of Appeals (31 Ga.App. 649, 121 S.E. 699), and plaintiff brings certiorari. Reversed.
J. F. Redding, of Barnesville, and Little, Powell, Smith & Goldstein, of Atlanta, for plaintiff in error.
Cleveland & Goodrich, of Griffin, for defendant in error.
Mitchell and Owen made the following contract:
"This agreement made and entered into this Aug. 24, 1918, witnesseth: That for and in consideration of $25.00 this day paid by E. M. Owen to W. H. Mitchell, receipt whereof is hereby acknowledged, the said W. H. Mitchell hereby agrees to deed to the said E. M. Owen lots 43 and 44 in 9th district, Pike county, Georgia, by Dec. 1st, 1918, for the sum of (12,000.00) twelve thousand dollars."
On March 14, 1922, Mitchell filed suit against Owen for the balance, $11,975. The petition, as amended, alleges in substance that on November 28, 1918, petitioner became unconscious and was for some time, because of his physical and mental condition, confined in sanitariums at Atlanta and Milledgeville; that during this time petitioner was mentally and physically unable to transact any business of any kind, and for this reason did not make a deed to the defendant on December 1, 1918; that upon regaining his health and returning home petitioner found that defendant had taken possession of the land; that defendant had cultivated the land for three years and refused to pay for the same; that petitioner considers himself bound by the contract of August 24, 1918; that he has never refused to comply with the same, and tenders to the defendant a deed properly executed, conveying the property. The answer of the defendant admitted the execution of the contract quoted, but averred that by the terms of the contract plaintiff covenanted and contracted to execute and deliver to defendant, by December 1, 1918, a deed to said lands for the sum of $12,000; that defendant had fully complied with the terms of said contract, had made every effort possible to obtain a deed from plaintiff, had tendered the purchase money to plaintiff in every way possible, by letter mailed to plaintiff at his proper address, by personally carrying the money to the place of business and home of plaintiff, by personally going to the sanitarium in Atlanta where plaintiff was confined, where he informed plaintiff's physician of his desire to tender the money to the plaintiff; that the physician refused to permit defendant to see or speak with plaintiff; that the wife, relatives, and business associates of plaintiff were advised by defendant of his desire to close the trade; and that these acts upon the part of defendant were a legal tender of the purchase money. The answer further sets up that defendant was very anxious to close the trade, because he had sold the land to a responsible party for $20,000, had received from such party a payment of $1,000 upon the same, and had agreed to execute and deliver to such party a deed conveying the land by January 1, 1919; that plaintiff knew that defendant had sold the land at an advanced price; that plaintiff had continuously from December 1, 1918, to September 1, 1921, breached his contract by failing and refusing to convey the property to defendant; that in consequence defendant had lost the sale of the land and the profit of $8,000, which would have accrued to him therefrom, and had been compelled to return to the prospective purchaser the $1,000 received from him; that the reasonable market value of said land on December 1, 1918, was $20,000, and on September 1, 1921, the same was worth only $7,000; that it was only after this great slump in the market value of the land that plaintiff had on September 1, 1921, expressed any intention of complying with his contract; that on October 1, 1921, defendant had made to plaintiff an absolute, unconditional tender of $4,000, with interest from December 1, 1918, in settlement of the purchase price of said land, and as the amount to which plaintiff was legally entitled on account of said purchase. Because of these facts defendant pleaded that he be permitted to recoup his damages, which he fixed at $8,000, and that the same be deducted from the purchase price of the land as sued for.
Upon the trial of the case the jury returned a verdict, finding for the plaintiff $3,975, with interest. The motion for new trial filed by plaintiff was overruled, and he carried the case to the Court of Appeals, where the judgment of the court below was affirmed. 31 Ga.App. 649, 121 S.E. 699. The case is here upon writ of certiorari.
"in holding and in deciding that, where the plaintiff sued the defendant for the purchase price of land bargained to him, and the defendant pleaded that he had resold the land at a profit and had tendered the full balance due on the contract, and that the plaintiff had at that time refused to make him a deed, the defendant could recoup as against the purchase price the difference between the price he was to pay and the price at which he resold it, notwithstanding it undisputedly appeared that the defendant had entered into and had continuously maintained possession of the land up to the time of the trial, and it also undisputedly appeared that at the time the contract of sale was made the seller had no knowledge or notice that a contract of resale was contemplated, but was informed to the contrary."
An examination of the record fails to verify the accuracy of the statements in this ground. Were this the sole ground for certiorari, the writ would be dismissed. Jones v. Pacific Insurance Co., 159 Ga. 248, 125 S.E. 470. The Court of Appeals, in stating the substance of the plea filed by the defendant, Owen, said:
"Owen pleaded that he resold the land at a profit...
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