Stanaland v. Stephens, 32123.

• Decision Date: 18 November 1948
• Docket Number: No. 32123.,32123.
• Court: Georgia Court of Appeals
• Parties: STANALAND . v. STEPHENS.

50 S.E.2d 258

STANALAND .

v.STEPHENS.

No. 32123.

Court of Appeals of Georgia,

Division No. 2.

Nov. 18, 1948.

Error from Civil Court of Fulton County; Quincy O. Arnold, Judge.

Action by J. H. Stanaland against Mrs. Bama A. Stephens, to recover damages for breach of contract to purchase realty. To review judgment sustaining general demurrer to petition and refusing to allow proffered amendment to petition, the plaintiff brings error.

Affirmed.

J. Ralph McClelland, Jr., of Atlanta, for plaintiff in error.

Harold Sheats, of Atlanta, for defendant in error.

Syllabus Opinion by the Court

MacINTYRE, Presiding Judge.

1. The alleged executory contract for the sale of land here in issue indicated the vendor's intention to sell all that tract of land "in Clayton Co., Ga., Being improved property with a 2 story dwelling; beginning at a point at the intersection of Dixie Hwy. and Forrest Park Rd., and known as Land Lot 52 of 13 Dist., being approx. 6½ acres and approx. 540 ft. Hiway frontage." This description shows that the land which was the subject of the contract was on one of the corners at the intersection of the Dixie Highway and Forrest Park Road, but it does notshow upon which of such corners the land was located. "If there is an ambiguity, latent or patent, it may be explained. [Code of 1933, § 20-704(1)] 'Where the description applies equally to several tracts, a latent ambiguity results, which may be explained by showing which one of the several tracts was claimed by the grantor.' " Pet-retes v. Atlanta Loan & Trust Co, 161 Ga. 468, 473, 131 S.E. 510, 512. The subject matter of the instant contract was not only identified as being all the interest, claimed by the grantor, in that tract of land in land lot 52 of the 13th District in Clayton County, Georgia, on the corner of the Dixie Highway and Forrest Park Road, but it was further identified as being a lot containing approximately six and one-half acres and fronting approximately 540 feet on the Dixie Highway and having a two-story dwelling house thereon. While this description furnished a poor description of the property which formed the subject matter of the contract, it was not, on its face, so vague and indefinite as to be incapable of being explained and applied by extrinsic evidence to the property at that location which the signor of the agreement claimed. Pearson v. Horne, 139 Ga. 453 (1 & 3), 77 S.E. 387; King v. Brice, 145 Ga. 65, 67, 88 S.E. 960; Crawford v. Ver-ner, 122 Ga. 814, 816, 50 S.E. 958; Andrews v. Murphy, 12 Ga. 431, 433; Carter v. Ray, 70 Ga.App. 419, 423, 28 S.E.2d 361.

2. A written contract for the sale of designated realty for a consideration of $28,500.00 to be paid "$14,000.00 Cash; 14, 500.00 To be financed, " and containing no further enumeration of the terms of payment, is unenforceable for indefinite-ness and uncertainty and will not form the basis of an action by the vendor against the purchaser for damages for the breach thereof. Crawford v. Williford, 145 Ga. 550, 89 S.E. 488; Trust Co. of Georgia v. Neal, 161 Ga. 965(1), 132 S.E. 385. See also Lightfoot v. King, 25 Ga.App. 80, 102 S.E. 468; Southeastern Realty Co. v. Griffin. 38 Ga.App. 220, 143 S.E. 435; Aycock Realty Co. v. Brown, 39 Ga.App. 649, 148 S.E. 291; Brown v. White, 73 Ga.App. 524, 37 S.E.2d 213; Woodall v. Williams, 176 Ga. 343, 347, 167 S.E. 886; and cases cited.

3. A proffered amendment to the petition alleging that "simultaneously with the execution of said written contract, as an inducement to the execution thereof and as additional and further consideration...