Ransom v. Waldrip, 59001

• Decision Date: 05 December 1979
• Docket Number: No. 59001,59001
• Citation: 263 S.E.2d 682,152 Ga.App. 711
• Parties: RANSOM v. WALDRIP.
• Court: Georgia Court of Appeals

Page 682

263 S.E.2d 682

152 Ga.App. 711

RANSOM v. WALDRIP.

No. 59001.

Court of Appeals of Georgia.

Submitted Oct. 31, 1979.

Decided Nov. 15, 1979.

Rehearing Denied Dec. 5, 1979.

Jefferson W. Willis, Gainesville, for appellant.

Troy R. Millikan, Gainesville, for appellee.

McMURRAY, Presiding Judge.

On June 19, 1967, Lamar V. Waldrip, as seller, and Betty Sue Ransom, as purchaser, executed a "Contract for Sale of Realty" whereby certain described real property, including all improvements thereon, was sold for the sum of $10,734.85. The purchase price was to be paid by 120 payments of $120.30 and the sum of $2100 "receipt whereof is hereby acknowledged as earnest money, which earnest money is to be applied as part payment of the purchase price of said property." The purchaser was to have immediate possession provided purchaser met certain special stipulations in the agreement. However, the seller was not required to execute to the purchaser a warranty deed to said property until "payment in full of the purchase price designated above (in the agreement reciting $2100 earnest money and the various payments shown)."

Simultaneous with this agreement was an invoice for a certain type mobile home reciting the sale to the purchaser, Bobby Lee Ransom, for the sum of $7,719.85 less the sum of $6,119.85 financed, leaving a balance of $1,600 of which $600 ($200 was shown as a cash binder, $400 as paid) was shown paid, leaving a balance of $1,000. Written thereon was an agreement by Bobby Lee Ransom to pay $400 upon possession of the trailer (which was shown thereon as paid)"and the remainder.$1000.00 to be paid back not less than $10.00 per month . . . (illegible writing left out) . . . until interest and principal has been paid. It is hereby agreed that the . . . (same real property listed in the contract of sale of realty) . . . shall be security for this balance."

On May 11, 1977, Lamar V. Waldrip sued Betty Sue Ransom and Bobby Lee Ransom in the State Court of Hall County contending the defendants are indebted to the plaintiff in the amount of $1,104 plus interest at the rate of 7% from April 1, 1977, until the date of judgment. The defendants answered denying any indebtedness. Defendant Bobby Lee Ransom also added an affirmative defense of accord and satisfaction. Considerable discovery then followed in that case.

However, on the 22nd day of November, 1977, in the Superior Court of Hall County, Betty Sue Ransom sued Lamar V. Waldrip in two counts, seeking in Count One specific performance with reference to the above described property contending that she had paid for the real property in full, and the defendant had not conveyed title to said property as provided by contract and for actual ($1500) and punitive ($15,000) damages and expenses of litigation ($1,500), contending defendant's breach of the contract was unwarranted, wilful, intentional, and in bad faith. Count 2 sought judgment in the sum of $12,000 as the value of the property in the event specific performance was not granted and punitive damages ($15,000) and expenses of litigation ($1,500).

The defendant Waldrip answered admitting jurisdiction, the existence of the contract for sale of realty, the value of the property as $10,734.85, and that he had not conveyed title to said property, but he denied plaintiff was entitled to the relief sought. He further answered Count 2 that the payment of $2,100 as earnest money as required by the contract was not completely paid in that $1,000 thereof was to have been paid by payments of at least $10 per month with interest at 8% per annum beginning July 19, 1967, and continuing until the $1,000 had been paid in full. He thus alleged that plaintiff Betty Sue Ransom purchased the mobile home. His second, third, fourth and fifth defenses involve estoppel, waiver, and pleas in abatement and bar by reason of the pending lawsuit in the state court in which the plaintiff (defendant in state court) had filed no counterclaim and that this action should be stayed pending disposition of the state court's suit contending that it involved the same material issues and the same transaction as this action. Defendant also added a counterclaim contending the plaintiff (Betty Sue Ransom) had promised to pay $1,000 with interest at 7% per year on the unpaid balance which had not been paid in full, and the plaintiff is liable to the defendant in the sum of $980.86 plus interest at the rate of 7% per annum until paid.

No stay of either suit was granted. On February 15, 1978, a pre-trial order was issued in the state court case. On April 25, 1978, the state court directed a verdict in favor of the defendant Betty Sue Ransom and a jury verdict was rendered against Bobby Lee Ransom in favor of plaintiff Lamar V. Waldrip in the amount of $418. A judgment was then entered in favor of Betty Sue Ransom against the plaintiff and in favor of the plaintiff against Bobby Lee Ransom in the sum of $418, dated May 1, 1978. On May 22, 1978, Lamar V. Waldrip, by warranty deed, conveyed to Betty Sue Ransom the real property involved in the contract for sale of realty dated June 19, 1967.

In the meantime, in the superior court suit plaintiff (Betty Sue Ransom) had moved for a partial summary judgment filed in court on April 19, 1978, to which she attached an affidavit showing that the contract for sale of realty dated June 19, 1967, which had been assigned to The First National Bank of Gainesville, Georgia, by the seller for a valuable consideration had been paid in full. In response to the motion defendant Waldrip by affidavits answered that the earnest money ($2,100) referred to in the contract "was not and has never been paid in full by Betty Sue Ransom or anyone." Other discovery was accomplished, and thereafter on July 28, 1978, the superior court took notice of the pending state court suit and the...