Pethel v. Waters

• Decision Date: 07 January 1965
• Docket Number: No. 22719,22719
• Citation: Pethel v. Waters, 220 Ga. 543, 140 S.E.2d 252 (Ga. 1965)
• Parties: D. T. PETHEL, Jr. v. Henry L. WATERS, Jr.
• Court: Georgia Supreme Court

Page 252

140 S.E.2d 252

220 Ga. 543

D. T. PETHEL, Jr. v. Henry L. WATERS, Jr.

No. 22719.

Supreme Court of Georgia.

Jan. 7, 1965.

Rehearing Denied Feb. 4, 1965.

Syllabus by the Court

1. Where the evidence submitted on the trial authorizes but does not demand a verdict in favor of either party, a ground of motion for new trial asserting the evidence does not support the verdict and a motion for judgment non obstante veredicto are properly overruled.

2. Where the exception taken to a charge of the court is that it was incorrect as an abstract principle of law and none of the evidence or pleadings to illustrate the inaptness of the charge to the facts of the case is set out or referred to in the ground, the question for consideration is whether the instruction given can under normal circumstances constitute a sound statement of the law.

3. Where as in the present case the issues presented by the pleadings and evidence involve the principles pertaining to waiver and estoppel, the trial judge properly charged the jury on those subjects.

4. A party may enter into a contract invalid and unenforceable, and by reason of the covenants therein contained and promises made in connection with the same, wrongfully cause the opposite party to forego a valuable legal right to his detriment, and in this manner by his conduct waive the right to repudiate the contract and become estopped to deny the opposite party any benefits that may accrue to him under the terms of the agreement. A suit by the other party in which he claims the benefits that, in such circumstances, he is equitably entitled to is not a suit on the contract but a suit to declare such rights and assert the waiver and estoppel.

5. Where a witness admits, without qualification, that he testified as appears from the transcript of his testimony taken by the court reporter on a former hearing of the same case, the transcript of his testimony on the previous hearing is not admissible when offered for the purpose of impeachment.

Henry L. Waters, Jr., filed suit for legal and equitable relief in the Hall Superior Court against D. T. Pethel, Jr. His petition alleged: He leased a described farm from Pethel on March 23, 1956, for a period of five years from that date at $700 per month, payable in advance. The written lease which both the lessor and lessee signed gave him an option to purchase the premises during the lease period. If he elected to purchase it during 1958, 1959 or 1960, he was to pay a stated amount for it and, if he elected to purchase it before the end of the lease period in 1961, he was to pay $20,000 for it. He took possession of the farm under the lease-option contract, has continuously remained in possession of it, and now has possession thereof. He has paid Pethel all rent due under the terms of the contract and has in fact paid him as rent $600 more than was due. During 1959 and 1960 he notified Pethel several times that he had elected to and would purchase and pay him $20,000 for the farm during 1961 in accordance with the terms of the contract. He also requested Pethel to have a deed prepared for delivery to him on payment of the $20,000 and Pethel assured him that he would do so.

On or about October 10, 1959, and again about December 19, 1959 he again told Pethel that he had elected to and was then exercising his option under the written contract and was buying the land in 1961 for $20,000 and wanted this clearly understood and wanted him to have a deed ready for delivery to him. Pethel at those times told him that he knew he had elected to purchase the farm and that he would bring the deed to him when the lease expired and he could pay the $20,000 for it when the deed was brought and delivered to him. The parties mutually agreed, understood and intended that the sale would be concluded in that manner. About February 4, 1961, he talked with Pethel and asked him to deliver the deed pursuant to the contract and his previous election to exercise the option to purchase the farm, and Pethel at that time told him he already had the deed made out and would deliver it to him when the lease expired and he could pay him the $20,000 when the deed was delivered to him. During the month of February, 1961, he, without success, made several efforts to contact the defendant by telephone and by looking for him for the purpose of paying him the $20,000 and securing a deed from him to the farm. During the week of March 13, 1961, he called the defendant by telephone several times for the same purposes, but was unable to contact him. During April, 1961, he, at his office in Gainesville, Georgia, made another personal demand on Pethel for a deed to the farm and told him that the $20,000 due for it was then immediately available in his office in lawful currency, but Pethel then refused to accept it and deliver him a deed to the farm. At that time, Pethel sought to have him make a new contract for the farm which he declined to do. During May, 1961, he made an actual unconditional tender of $20,000 in lawful currency of the United States to Pethel by counting it out in his presence and offering it to him as the purchase money for the farm and without any demand for a deed or any other condition.

Since the contract was made on March 23, 1956, and while he (Waters) has been in possession of the farm, he has made permanent improvements on it at a cost to him of $33,192.47, a substantial part of which was expended during February and March 1961, after Pethel had agreed to deliver a deed to him for the farm after the expiration of the option, which improvements were made with full knowledge on Pethel's part that he had elected to purchase the farm and Pethel had agreed to deliver him a deed for it after the expiration of the option.

It is further alleged that the petitioner has at all times and in good faith relied on Pethel's statements, acts and conduct and has in good faith relied on his express notice to Pethel of his election to purchase the farm and the improvements placed on the farm and Pethel's statement that he could in 1961 pay $20,000 for the farm when Pethel delivered him a deed to it, and for these reasons Pethel is estopped from contesting his right to purchase the farm on his payment to Pethel of $20,000 for it and is estopped from contesting or refusing to convey to him good title to the farm and the improvements thereon, and from pretending or claiming that he has not complied with all the terms of the lease-option contract and all obligations thereunder. It is also alleged that the lease-option contract is fair, reasonable, lawful and equitable.

The prayers are for a judgment decreeing title to the farm in the plaintiff on his payment of $20,000 either to Pethel or into the registry of the court and a judgment for $600, the amount he overpaid Pethel for rent.

The defendant demurred to the petition on the ground that its allegations were insufficient to state a cause of action for the relief sought. His demurrer was overruled and he excepted. This court in Pethel v. Waters, 219 Ga. 376, 133 S.E.2d 334, affirmed the judgment overruling the demurrer to the petition. The above statement of the allegations of the petition is more fully stated in the opinion when the case was previously before this court. The statement there made is adopted and incorporated as a part of the statement of facts here set forth.

The case proceeded to trial, evidence was submitted by both parties and the judge charged the jury. Thereafter, the jury returned a verdict in the plaintiff's favor and fixed the amount he was to pay the defendant. The defendant made a motion upon the general grounds and moved a verdict in his favor notwithstanding the verdict on the usual ground that the evidence submitted on the trial demanded a verdict in his favor. Later, special grounds were added by amendment to the motion for new trial. Both motions were overruled and the defendant excepted.

Stow & Andrews, Frank B. Stow, Robert E. Andrews, Gainesville, for plaintiff in error.

Kenyon, Kenyon & Gunter, E. D. Kenyon, A. R. Kenyon, Joseph H. Blackshear, Gainesville, for defendant in error.

QUILLIAN, Justice.

1. The one general ground of the motion for new trial insisted upon here, that the verdict was not supported by evidence, and the motion for judgment notwithstanding the verdict, made upon the ground that a verdict in the defendant's favor was demanded, may be conveniently considered together.

The overruling of the general demurrer on the previous appearance of the case adjudicated the sufficiency of the petition to set forth a cause for the relief prayed. The petition did not allege that the purchase money for the farm described in the option contract was tendered before the expiration date of the contract, but that the defendant by his conduct, related in the petition, waived the tender of the purchase money before the expiration of the option and was estopped to deny the tender of the purchase money shortly after the expiration date was timely. The petition alleged the defendant, before the expiration of the lease-option contract, recognized the plaintiff had elected to exercise his option and purchase the farm on March 23, 1961; that the defendant agreed with the plaintiff, however, that the date of consummating the sale would be deferred until the lease expired at which time he would bring the plaintiff a deed to the farm in question and the plaintiff would then pay the purchase price for the farm.

This court held in Pethel v. Waters, 219 Ga. 376, 379, 133 S.E.2d 334, 337, supra: 'Pethel waived payment or tender of the purchase money before the option expired and since Waters allegedly made an actual unconditional tender of the purchase money, namely, $20,000 to Pethel during May, 1961, it was then the duty of Pethel to accept it and convey the farm to Waters; and on his refusal to do so, Waters became entitled to specific performance of the contract or to a decree...