Perry Development Corp. v. Colonial Contracting Co., Inc., 28371
| Decision Date | 06 February 1974 |
| Docket Number | No. 28371,28371 |
| Citation | 203 S.E.2d 475,231 Ga. 666 |
| Parties | PERRY DEVELOPMENT CORPORATION v. COLONIAL CONTRACTING COMPANY, INC. |
| Court | Georgia Supreme Court |
Hansell, Post, Brandon & Dorsey, W. Lyman Dillon, Atlanta, for appellant.
Ware, Sterne & Griffin, Alton H. Hopkins, Atlanta, for appellee.
Syllabus Opinion by the Court
This ia an action by Colonial Contracting Co., Inc., against Perry Development Corp. for specific performance, or in the alternative damages, of a contract for the sale of land. Colonial builds homes. Perry develops land for residential purposes. The principal stockholder of Perry is also the principal stockholder of Blake Perry Realty Company, a real estate sales company.
Colonial agreed to purchase Two special stipulations of the contract provided: 'Sale shall be closed on or before July 1, 1972,' and 'Blake Perry Realty Company to have sales listings of homes in accordance with Listings Agreement attached hereto and made a part hereof.'
The sale was not closed on July 1, 1972, or thereafter. Colonial filed this suit on March 30, 1973. It claims the lots were not developed on July 1, 1972, and Perry waived performance on that specific date and the parties mutually extended the closing date. Perry contends (1) that the contract is too vague to be enforced, (2) that the contract expired by its terms, and (3) that Colonial has not complied with the contract. Colonial has purchased other lots from Perry in this same subdivision. This appeal is from the denial of Perry's motion for summary judgment. Held:
1. Perry contends that the provision of the contract which states, 'Development to be of the same quality materials, etc., as Units II and III, street lights not being a part of the development' renders the contract too vague and uncertain to be specifically enforced. It argues that, '. . . it is absolutely impossible to determine what type of performance is required by the word 'et cetera' and it would be impossible to require a party to specifically perform an act 'et cetera'.' We do not agree. '. . . (T)he majority of the cases interpret the term as relating to correlated matters or others of like character-matters within the rule of ejusdem generis.' 12 Am.Jur. 802, § 257. However, it is sometimes declared to be mere surplusage. In our opinion that is the effect of the use of the word 'etc.' here. The contract provides that the property is '. . . to be completed according to Gwinnett County's specifications as per provisional plat of Hannon and Weeks, Surveyors, dated March 17, 1970, attached hereto and made a part hereof.' It further provides, 'Development to be of the same quality materials, etc., as Units II and III, . . .' In our opinion the word 'etc.' merely affirms that the development is to be completed according to Gwinnett County's specifications as stated. Under this construction the word is surplusage and does not render the contract vague and uncertain. See Harrison v. McCormick, 89 Cal. 327, 26 P. 830.
2. We conclude the contract is clear that the purchaser is buying 'nine proposed lots' in the seller's subdivision and that it is the seller's obligation to develop said lots. Where no time is specified for development a reasonable time will be implied. The provision that the development of said lots in Unit IV will be of the same quality materials as Units II and III of the same subdivision is definite and capable of enforcement. Green v. Zaring, 222 Ga. 195, 149 S.E.2d 115 is not authority for a contrary conclusion. There the contract provided for the development of land with apartment buildings and related structures without any specifications whatsoever.
3. Perry contends that the Listing Agreement which in turn provides for the execution of an Exclusive Listing Form are both vague and uncertain. Therefore, it argues, that these contracts are a material part of the lot purchase contract and consequently render it incapable of specific performance. Assuming without deciding that the Listing Agreement and Exclusive Listing Form are vague and uncertain, we do not agree with Parry's conclusion. Colonial contracted with Perry for the purchase of nine lots. The Listing Agreement and Exclusive Listing Form are agreements with a third party, Blake Perry Realty Company. These agreements recite considerations separate and apart from the consideration...
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