Reese v. Ideal Realty Co., 48500

• Decision Date: 05 March 1974
• Docket Number: Nos. 1,3,No. 48500,2,48500,s. 1
• Citation: 131 Ga.App. 149,205 S.E.2d 432
• Parties: Pearl REESE v. IDEAL REALTY COMPANY et al
• Court: Georgia Court of Appeals

Page 432

205 S.E.2d 432

131 Ga.App. 149

Pearl REESE v. IDEAL REALTY COMPANY et al.

No. 48500.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 5, 1974.

E. E. Moore, Jr., J. C. Daugherty, Atlanta, for appellant.

Kaler, Karesh & Frankel, Ira L. Rachelson, Atlanta, for appellees.

Syllabus Opinion by the Court

DEEN, Judge.

This appeal arises out of two suits; one by Bennie Auerbach as prospective purchaser of certain alleged realty against Pearl Reese as seller for damages for breach of contract; and the other by Ideal Realty Company and a real estate broker against Pearl Reese as seller for commissions under the same contract. Appeal was taken from the Civil Court of Fulton County, entering judgment in favor of the two plaintiffs against the defendant. This is the third appearance of these cases before this court. For a full statement of the facts and dispensation of the two prior cases, see Ideal Realty Co. v. Reese, 122 Ga.App. 707, 178 S.E.2d 564, and Reese v. Ideal Realty Co., 128 Ga.App. 684, 197 S.E.2d 829. Held:

1. The defendant contends that the contract for the sale of the real property contains an inadequate description. The plaintiffs contend that the sufficiency of the contract has already been determined in the prior appearance before this court on summary judgment in Ideal Realty Co. v. Reese, 122 Ga.App. 707, 178 S.E.2d 564, supra.

A ruling made on summary judgment may establish the law of the case on a subsequent trial. Martell v. Atlanta Biltmore Hotel Corp., 120 Ga.App. 880, 172 S.E.2d 842. There is nothing to the contrary contained in Sanders v. Alpha Gamma Alumni Chapter, 107 Ga.App. 403, 130 S.E.2d 255. On the prior appearance of that case in Sanders v. Alpha Gamma Alumni Chapter, 106 Ga.App. 137, 126 S.E.2d 545, the court found the pleading in question was deficient but also found on motion for summary judgment that the facts did not establish such deficiency, hence summary judgment was not proper. Then in the subsequent case, the court considered the pleading on general demurrer and found it there to be deficient.

In Ideal Realty Co. v. Reese, 122 Ga.App. 707, 178 S.E.2d 564, supra, this court set forth the description of the property in the contract. It did not expressly rule on that description but made the determination that the contract was sufficient to authorize the plaintiffs to recover on the same. Since the defendant would have been entitled to summary judgment in her favor if the contract had been insufficient for any reason, this precludes our considering the sufficiency of the contract in this case. The defendant had she any objection which she wished to raise in this regard should have done so on the prior appearance of the case and in its absence will be bound by the aforesaid ruling.

2. On the prior appearance of the case in Ideal Realty Co. v. Reese, 122 Ga.App. 707, 178 S.E.2d 564, supra, this court found there was sufficient proof to sustain the plaintiffs' tender to the defendant of the necessary down payment check in the sum of $15,750, and of the security deed and note in the sum of $36,750. Such ruling, however, is not controlling where the evidence offered at the trial differs from that offered on the summary judgment motion. Moorman v. Williams, 107 Ga.App. 640(2), 131 S.E.2d 238; Davis v. Wight, 207 Ga. 590(1), 63 S.E.2d 405.

On the trial of this case there was undisputed evidence that the witnesses went to Mrs. Reese with a certified check and tendered it, and that they also had documents which they now contend were the evidences of indebtedness, the note and security deed. These latter the court did not admit in evidence because, while one witness was 'pretty sure' they were the precise documents, the witness who had custody of them at the interview was not present to testify to this fact. However, there is no challenge to the authenticity of the documents or lack thereof, because Mrs. Reese, immediately on being offered the check, took the position that no tender would be accepted. It is unnecessary to make a tender, to prove that a tender legal in every particular has been made, where the person to whom it is offered will not accept it even though it were a perfect tender. O'Neal v. Spivey, 167 Ga. 176, 145 S.E. 71; Fitzgerald v. Vaughn, 189 Ga. 707, 7 S.E.2d 78; Burnam v. Wilkerson, 217 Ga. 657, 124 S.E.2d 389; Carnation v. Pridgen, 84 Ga.App. 768, 67 S.E.2d 485. A tender is not required where the party to whom the offer is made states that it will be refused if made. Nickelson v. Owenby, 208 Ga. 352, 66 S.E.2d 828; G.V. Corp. v. Bob Todd Realty Co., 102 Ga.App. 190, 115 S.E.2d 611. 'Where the tender is rejected without specifying the basis of the rejection, the right to object is waived.' Murry v. Lett, 219 Ga. 809, 136 S.E.2d 348.

There was obviously no real issue as to whether the proper papers accompanied the tender of the check, and there was no objection to the tender on the ground of insufficiency. There was simply a straight out refusal to accept any tender. Under these circumstances the appellant cannot obtain a reversal of the judgment because of a failure of proof which her own actions caused and her refusal waived.

3. There are further enumerations of error on the admission in evidence of the contract of sale, photocopy of check drawn on the credit of the Federal Reserve Bank, the computer tape measurement of acreage of land survey, and field notes of the survey. None of these rulings shows reversible error. Mrs. Reese identified her signature on the contract of sale, which allowed the purchaser an option of one of three methods of paying for the property. The method chosen, was number 3, 30% cash at closing and the balance in ten equal instalments, plus 7% interest on the unpaid balance. The price stated in the sale contract was $52,500 or $7,000 per acre, whichever was greater. The president (owner at the time the survey was made) of the surveying corporation testified that the survey notes were made and preserved in the regular course of...