Muller v. Cooper

• Citation: 141 S.E. 300,165 Ga. 439
• Decision Date: 10 January 1928
• Docket Number: 5925.
• Parties: MULLER v. COOPER et al.
• Court: Georgia Supreme Court

141 S.E. 300

165 Ga. 439

MULLER v. COOPER et al.

No. 5925.

Supreme Court of Georgia

January 10, 1928

Syllabus by Editorial Staff.

To constitute a valid sale of real estate which court of equity will require to be specifically performed, memorandum of contract must specify seller and buyer, must sufficiently describe subject-matter of contract, and must name the consideration, which need not be expressly stated if memorandum furnishes key by which amount of purchase price can be ascertained.

To constitute valid sale of real estate which court of equity will require to be specifically performed, memorandum of contract must specify time and amounts of deferred payments if consideration is not all to be paid in cash.

Contract for sale of realty, which is certain as to parties to contract, description of property, and names definite sum as consideration, providing manner in which sum is to be paid by assumption of loans and balance due on furniture to another describing time of payment of loans and interest held not too vague and indefinite to be enforceable in equity.

In suit for specific performance of contract to convey realty prescribing total consideration to be paid by assumption of loans, intention of parties may be shown and manner of payment made certain by resort to parol evidence.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Equitable petition by Mrs. Julia M. Muller against G. W. Cooper and others. Petition was dismissed, and plaintiff brings error. Reversed.

Hill and Atkinson, JJ., dissenting in part.

Kendrick Scott and Little, Powell, Smith & Goldstein, all of Atlanta, for plaintiff in error.

Troutman & Troutman and Candler, Thomson

p>Page & Hirsch, all of Atlanta, for defendants in error.

Syllabus OPINION.

PER CURIAM.

1. In view of the amendment to the bill of exceptions, making certain parties defendants in error, the motion to dismiss the writ of error is denied.

2. To constitute a valid sale of real estate which a court of equity will require to be specifically performed, the following are the essentials to the contract of such sale: (1) The memorandum of contract must specify the parties, that is, the seller and the buyer; (2) the memorandum must sufficiently describe the subject-matter of the contract; and (3) the memorandum must name the consideration. The consideration need not be expressly stated if the memorandum of contract furnishes a key by which the amount of the purchase price can be ascertained. If the consideration is not all to be paid in cash, then the times and amounts of deferred payments must be specified. When the contract expressly states the amount of purchase money or furnishes a key by which it can be ascertained, then the contract is sufficient. The principles here stated are in accord with decisions of the courts of last resort in many of the states of this country, as will appear from examination and analysis of the following cases: Wagner v. Eustathiw, 169 Cal. 663, 147 P. 561; Ehrenstrom v. Phillips, 9 Del. Ch. 74, 77 A. 81; Inglis v. Fohey, 136 Wis. 28, 116 N.W. 857; Nelson v. Husted (C. C.) 182 F. 921; Kipp v. Laun, 146 Wis. 591, 131 N.W. 418; Kerr v. Moore, 6 Cal.App. 305, 92 P. 107; Meyer v. Jenkins, 80 Ark. 209, 96 S.W. 991; Dingman v. Hilberry, 159 Wis. 170, 148 N.W. 761; Caplan v. Buckner, 123 Md. 590, 91 A. 481. Other cases might be added to this list, but to do so would be a duplication of the citations made in the cases listed.

3. The court erred in sustaining the general demurrer to the petition. The contract, which is shown in full in the statement of facts, is certain as to the parties to the contract, the gross consideration, and the description of the property which was the subject of the sale. It is insisted that the provision of the contract as to the payment of the purchase price was "too vague and indefinite to be enforceable in law." The contract names a definite sum, to wit, $775,000, as consideration. It further provides how that sum is to be paid, and it is to the latter provision that the criticism is applied. The intention of the parties may be shown, and the manner of payment made certain, by resort to parol evidence.

4. The decision in Trust Co. of Ga. v. Neal, 161 Ga. 965, 132 S.E. 385, does not require a ruling contrary to the above. It may be said that the decision cited reached the extreme limit to which we are willing to agree. The authorities cited to support the ruling there made are not contrary to the rulings in preceding headnotes. The cases of Tippins v. Phillips, 123 Ga. 415, 51 S.E. 410, and Young v. Flournoy, 139 Ga. 634, 77 S.E. 807, dealt exclusively with the sufficiency of the description of the land mentioned in the contracts. None of those cases, nor Crawford v. Williford, 145 Ga. 550, 89 S.E. 488, was a full bench decision; and consequently they are not binding authorities.

Judgment reversed.

All the Justices concur, except ATKINSON and HILL, JJ., who dissent save as to the ruling of practice in the first paragraph.

RUSSELL, C.J., and HINES, J. We concur in the result reached by the majority of the court in this case, but we adhere to our dissent in Trust Co. of Georgia v. Neal, 161 Ga. 965, 132 S.E. 385.

HILL J.

The sole question relied on and argued by the plaintiff is whether or not the terms of the contract, with respect to the loans to be assumed by the parties, are sufficiently clear to support a petition and prayer for specific performance, with an alternate prayer for damages. Counsel for the defendant rely on the case of Trust Co. of Georgia v. Neal, 161 Ga. 965, 132 S.E. 385, supra, where this court decided:

"A paper provided: 'The undersigned hereby agrees to purchase *** the following described property, to wit: [Then follows a description of particular realty] for the sum of twenty-seven thousand, five hundred dollars ($27,500), to be paid as follows: Assumption of loan $9,500, cash $7,000, and the balance represented by [then follows a description of other realty]. [Signed] L. G. Neal. The above proposition is hereby accepted. *** [Signed] D. J. Griffin.' Held, that the language, 'assumption of loan $9,500,' construed in connection with its context, is too indefinite to identify any particular loan."

Counsel for the plaintiff insists that the principle so ruled, and the decisions on which the Neal Case was based, are not controlling here; that the Neal decision merely held that the provisions of the "assumption of loan of $9,500" was too uncertain, because the date of the payment of the loan was not stated, whereas the contract now under consideration...