Sampson v. McRae

• Decision Date: 21 February 1923
• Docket Number: 13324.
• Citation: 116 S.E. 651,29 Ga.App. 690
• Parties: SAMPSON v. MCRAE.
• Court: Georgia Court of Appeals

116 S.E. 651

29 Ga.App. 690

SAMPSON v. MCRAE.

No. 13324.

Court of Appeals of Georgia, Second Division

February 21, 1923

Syllabus by the Court.

Under the authority of Cone v. American Surety Co., 115 S.E. 481, decided by the Supreme Court, January --, 1923, the motion of the defendant in error to dismiss the bill of exceptions upon the ground that this court has no jurisdiction to entertain a writ of error from the city court of Thomasville is denied.

A provision in a contract which provides for its performance in the alternative does not render the contract ambiguous, and therefore the rule that an ambiguous provision shall be construed most strongly against the draftsman does not apply. A provision in a contract that one of the parties may buy or act as sales agent in selling certain real estate belonging to the other contracting party is not ambiguous, but provides for the performance of the contract by one of the parties at his election, either by buying the property from the other or by selling the property as agent for the other.

In a contract for the sale of land the following description of the land is sufficiently certain for identification "One certain lot of land in the city of Thomasville located on Jackson street next to city barracks, containing thereon two two-story brick buildings." Since that is certain which is capable of being made certain, a petition in a suit on the contract, alleging a description of the land as contained in the contract, and alleging facts rendering an identification of the land certain, such as that there was only one city barracks in the city of Thomasville, and that the city of Thomasville was in Thomas county, Ga., and that there was only one tract of land adjoining the city barracks having thereon two two-story brick buildings, and that such one tract of land was the only tract of land adjoining the city barracks owned at the time by the owner of the land described in the contract, together with other facts by way of identification, sufficiently describes and identifies the land described in the contract. See, in this connection Horine v. Hicks, 25 Ga.App. 802, 104 S.E. 922, and cases there cited.

In a suit for damages for breach of a contract, a plea which alleges a former election of a remedy by the plaintiff and which sets out a petition by the plaintiff praying for specific performance of the same contract, together with process and service upon the defendant, and which alleges a voluntary dismissal by the plaintiff of such petition prior to the institution of the suit in the pending case, is insufficient, without more, to show such a former election of remedy as will constitute a bar to the prosecution of the pending suit. See, in this connection, Lane v Lodge, 139 Ga. 93 (3a), 76 S.E. 874; Causey v. Causey, 106 Ga. 188, 32 S.E. 138; Board of Education, etc., v. Day, 128 Ga. 156, 164, 57 S.E. 359; Civ. Code 1910, § 4639.

"Where an executed act, as the payment of money, is recited as the consideration for a contract, the contract is not rendered invalid by proof that the consideration was not actually executed by the payment of the money." Bridges v. Shirling, 26 Ga.App. 279(4), 105 S.E. 862.

Lawful tender of money need not...