Stembridge v. Smith

• Decision Date: 13 May 1957
• Docket Number: No. 19660,19660
• Citation: 98 S.E.2d 609,213 Ga. 227
• Parties: W. F. STEMBRIDGE et al. v. Y. Herman SMITH.
• Court: Georgia Supreme Court

Page 609

98 S.E.2d 609

213 Ga. 227

W. F. STEMBRIDGE et al. v. Y. Herman SMITH.

No. 19660.

Supreme Court of Georgia.

May 13, 1957.

Anderson, Anderson, Walker & Reichert, Chas. W. Walker, Macon, for plaintiff in error.

W. J. Wallace, Roberta, John B. Harris, Jr., Macon, for defendant in error.

Syllabus Opinion by the Court

CANDLER, Justice.

This litigation arose on November 2, 1955, when Y. Herman Smith filed an action against W. F. Stembridge of Crawford County, Georgia, and Leola Felton of Detroit, Michigan. In substance, the amended petition alleges: On October 3, 1955, the defendant Felton was the fee simple owner of certain realty in Crawford County and on that date she wrote T. P. Smith that she was interested in disposing of her land in that county; that she would sell it for $1,900 cash; and that if he knew of anyone who was interested in purchasing it at that price, to let her know. On October 8, 1955, T. P. Smith wrote the defendant Felton that the plaintiff desired to purchase her land. With that letter he sent her the plaintiff's personal check for $1,900 which was drawn on the Crawford County Bank, together with a warranty deed for the land which she was requested to execute. The letter to her reads in part; 'Leola, I believe you know Mr. Herman but if you wish, you can let the check clear through the banks before mailing the deed back. If you do that please drop me a line letting me know that you have executed the deed and will mail same when the check clears.' On October 12, 1955, she wrote T. P. Smith: 'I received your letter with the check and deed and I am having the check cleared through the banks. Will send the deed to you as soon as the check is clear.' The check to her for $1,900 was paid by the bank on which it was drawn on October 14, 1955. On October 15, 1955, the defendant Stembridge asked T. P. Smith if he had an option on the Felton Land, and T. P. Smith then informed him that the plaintiff had purchased it from her; that the purchase money had been sent to her; and that he was looking for the deed back from her. The defendant Stambridge then indicated that he wanted the land and stated that he would pay the plaintiff a profit for it. The defendant Stembridge on October 17, 1955, also stated to the plaintiff that he wanted the Felton land and would pay him a profit for it, and the plaintiff then stated to him that he would be glad to discuss the matter with him later. The defendant Felton on October 18, 1955, wrote T. P. Smith that she would not convey the land to the plaintiff. In the letter she said: 'I was forced to accept a better offer.' On October 20, 1955, T. P. Smith telephoned the defendant Felton that the plaintiff would expect her to comply with her contract to convey the land to him, and she replied by saying that she had been informed that, if she had not executed the deed to the plaintiff, she would not be required to carry out her contract with him. On October 22, 1955, the defendant Stembridge presented for recordation to T. P. Smith, Clerk of the Superior Court of Crawford County, a warranty deed to himself from the defendant Felton, embracing the land in question, and it was then recorded. This deed was executed on October 20, 1955, and recited a consideration of $2,400. The recorded deed of October 20, 1955, to the defendant Stembridge is a cloud on the plaintiff's title. The defendant Stembridge is preparing to take actual possession of the land and to cut and remove the timber from it. Besides for process, rule nisi, and service, there are prayers that legal title to the land involved be decreed to be in the plaintiff; that the defendant Stembridge be required to produce in court and deliver up the deed he obtained from the defendant Felton, and that it and the record thereof be canceled; that the defendant Stembridge be enjoined from taking actual possession of the land involved and from cutting any of the timber on it; and that the plaintiff be granted general relief.

The defendants separately demurred to the amended petition on the ground that it stated no cause of action for any of the relief sought. They also filed separate answers, which were later amended, in substance averring: The defendant Felton wrote the defendant Stembridge on October 3, 1955, that she wanted to sell her land in Crawford County and that she would take $1,900 cash for it. On October 6, 1955, the defendant Stembridge wired her as follows: 'Will send check for $1900 with deeds in few days Thanks.' On October 11, 1955, the defendant Stembridge mailed the defendant Felton his check for $1,900 together with a deed to the land in question for execution by her. After some delay she returned the check and the unexecuted deed to his attorney. On October 16, 1955, the defendant Stembridge wired the defendant Felton an offer of $2,400 for her land. She accepted his offer by wire and on October 17, 1955, he wired her the amount of his offer. She accepted the $2,400 and executed and forwarded him a deed to the land on October 20, 1955. The plaintiff demurred to and moved to strike the amended answers on the ground that they set forth no issuable defense to his action. By one judgment the court overruled the defendants' demurrers to the amended petition and sustained the plaintiff's demurrers to the amended answers and struck them. The defendants assign error on both rulings. Held:

1. A contract to sell land can be made through the mails by correspondence. Robinson v. Weller, 81 Ga. 704, 8 S.E. 447. The defendant Felton's letter of October 3, 1955, to T. P. Smith meant that a cash payment of $1,900 for her land in Crawford County was to be made to her in Detroit, Michigan, and her offer to sell, as so made, was therefore not accepted by the plaintiff. Arnett v. Tuller, 134 Ga. 609, 68 S.E. 330. But by T. P. Smith's letter of October 8, 1955, with its enclosures, the plaintiff made a counter offer to purchase the defendant Felton's land, and by the terms of the plaintiff's counter offer she was to execute the enclosed deed, deposit the check for $1,900, and forward to the plaintiff or his agent the executed deed as soon as the check was paid by the bank on which it was drawn, and her letter of October 12, 1955, in which she stated that she had deposited the check for $1,900 and would send the deed as soon as the check cleared was an unqualified and unconditional acceptance of the plaintiff's counter offer...