Murphy v. Morse
| Decision Date | 17 October 1957 |
| Docket Number | No. 36835,No. 1,36835,1 |
| Citation | 96 Ga.App. 513,100 S.E.2d 623 |
| Parties | B. J. MURPHY v. Jack MORSE et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial court erred in denying the plaintiff's motion for new trial.
Bill J. Murphy brought an action against Jack Morse trading as Morse Realty Company, and William C. Griffin, Jr., in two counts seeking to recover an amount of money paid by him as 'earnest money' in connection with a proposed real-estate transaction in which he was to be the purchaser, Griffin the seller, and the defendant Morse the real estate broker. After the defendants filed answers to the petition the plaintiff filed several demurrers to the defendant Griffin's answer, some of which were overruled. On the trial, after various amendments had been made to the plaintiff's petition, the trial court directed a verdict for the defendants on both counts of the petition as it then stood. The plaintiff filed a motion for new trial on the general grounds which he later amended so as to assign error on the admission and rejection of evidence and on the direction of the verdict. The plaintiff's motion for new trial as amended was denied and it is to this judgment that he excepts as well as to the judgment on his demurrers adverse to him.
Reeves, Boyd & Callaway, Rex T. Reeves, Thomas R. Luck, Jr., Atlanta, for plaintiff in error.
Joseph B. McConnell, Palmer H. Ansley, Smith, Field, Doremus & Ringel, Atlanta, for defendants in error.
1. The plaintiff, in count 3 of his petition as finally amended (count 2 having been stricken during the trial and count 3 added), sought to recover the 'earnest money' paid him to the realty company because the description of the property contained in the sales contract was too vague, uncertain and indefinite to describe a particular piece of property. The sales contract, which was signed by both the purchaser and the seller, did not show in what city, county, or state, or for that matter the country, the property was located, nor did it show where the contract was executed, (the only description contained in the sales contract when such contract was executed was 'all that tract of land in 4582 Club Drive.)'
Under the decision of the Supreme Court in Molton v. Woodruff, 175 Ga. 168, 165 S.E. 59, the description in the sales contract '4582 Club Drive' is too indefinite to be the basis of a contract for the conveyance of real estate. See also Cashin v. Markwalter, 208 Ga. 444, 446, 67 S.E.2d 226. Therefore, the description contained in the real estate sales contract under consideration was insufficient, and a finding for the defendants and against the plaintiff was unauthorized unless the following phrase under the above description would save the contract: 'Legal description to be attached later and to become a part thereof.'
The defendants contend that this phrase saved the contract, and in support of such position cite Schmalzer v. Jamnik, 407 Ill. 236, 95 N.E.2d 347, 351, wherein it was held: An examination of this case discloses that description of the property contained in the sales contract itself without such later inserted legal description gave a sufficient key to the property so that the later inserted legal description was actually not necessary under the law as interpreted by the Supreme Court of Georgia. This, however, was not...
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...or has been stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. This court held in Murphy v. Morse, 96 Ga.App. 513, 516, 100 S.E.2d 623, 625, that "(o)rdinarily it is a jury question as to whether a plaintiff is entitled to attorney's fees . . . (but) 'A mere refu......
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...litigous (Code § 20-1404), the mere refusal to pay a disputed claim does not warrant the award of such expenses. Murphy v. Morse, 96 Ga.App. 513, 100 S.E.2d 623. The evidence adduced below shows that Commercial has not been stubbornly litigious. Judgment reversed. BELL, C.J., and STOLZ, J.,......