Tippins v. Phillips

• Decision Date: 16 June 1905
• Citation: 51 S.E. 410,123 Ga. 415
• Parties: TIPPINS. v. PHILLIPS.
• Court: Georgia Supreme Court

123 Ga. 415

51 S.E. 410

TIPPINS.

v.PHILLIPS.

Supreme Court of Georgia.

June 16, 1905.

Specific Performance — Indefinite Contract.

Neither specific performance, nor damages for its breach, will be decreed in an action on a written option to purchase land, where the land is so vaguely described that the writing furnishes no key to its identification.

[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 71-82; vol. 48, Cent. Dig. Vendor and Purchaser, § 27.]

(Syllabus by the Court.)

Error from Superior Court, Telfair County; D: M. Roberts, Judge.

Action by J. U. Tippins against D. W. Phillips. Judgment for defendant, and plaintiff brings error. Affirmed.

J. U. Tippins brought suit against D. W. Phillips, alleging that on June 22, 1904, Phillips sold to petitioner a certain tract of land lying in the 1403d G. M. district of Tattnall county, containing 424 acres, having boundaries as specified in the petition, and being known as the "D. W. Phillips Tract of Land, " which he had obtained from his father's estate; that Phillips also sold petitioner his share of the crops then growing on said tract. It was further alleged that the contract of sale was in writing, as follows:

"State of Georgia, Telfair County. Lumber City, Ga., June 22, 1904. For and in consideration of the sum of $5.00 to me in hand paid, and receipt of which is hereby acknowledged. I have granted to Mr. J. U. Tippins, a 30 days option on 424 acres of land in Tattnall County. The price of said land if taken in the limit of this option, is to be $1100.00 said price to also include my share of the crops now growing on the said land. In Witness whereof, the parties hereto have hereunto subscribed their names and affixed their seals the day and year first above written. D. W. Phillips. [L. S.] J. U. Tippins. [L. S.]

"In presence of: K. C. Holaday, C. E. Sikes."

Plaintiff alleged that within the time limit of the option he tendered to the defendant $1,100 in cash, and that at the time of the tender the defendant refused to accept the same. He further charged that D. W. Phillips then admitted the execution and delivery of the option, but refused to comply with its conditions, merely offering to return the $5 received as earnest money to bind the contract; that on August 6, 1904, the defendant verbally sold to petitioner two other tracts of land adjoining each other and the 424-acre tract for $10 per acre, and as evidence of such contract petitioner attached to his petition the following letter:

"Lumber City, Ga. July 21, 1904. Mr. J. U. Tippins, Altamaha, Ga. — Dear Sir: I would like you make me an offer on Mrs. McLeod's little place there are 100 acres in the tract. If you will pay her the worth of it, you certainly will have no trouble in securing a deed to my property. You may not have any trouble to get it any way, as 1 told you the other day while up here that I meant to do the clean thing, and expected to do it, but that I would make no deed until I made some investigation as to certain matters in your neighborhood. Now I will soon go down there, but can't say for certain that I will get off next week, but will say that it will not be later than ten or twelve days, but if can arrange with my people, will try to be there by the middle of next week. If you don't care, make me an offer in writing, you can think the matter over, and if you are in a notion for it, we will see what can be done when I go down. If you feel like it, you can answer this letter. Yours truly, D. W. Phillips."

Petitioner alleged a continuous tender of $1,100 for the lot of land mentioned in the option and of the price named for the adjoining tracts; that the value of the 424-acre tract was $2,968. He prayed judgment for the difference between $1,110 and $2,968, unless defendant would make him a good and sufficient title to the 424 acres of land. The defendant demurred to the petition on the ground that the alleged option was not sufficiently definite and certain in its terms and in its description of the land to authorize the court to require a specific performance by the defendant; that the alleged parol contract as to the tracts adjoining the 424-acre tract was void because it was not in writing; and that the option contract was void for uncertainty and indefiniteness, and the allegations of the petition were insufficient to authorize a decree for specific performance or damages for the breach of the contract. The court sustained the demurrer, and the plaintiff excepts.

W. T. Burkhalter and J. K. Hines, for plaintiff in error.

B. M. Frizzelle and E. D. Graham...