Walter L. Tally, Inc. v. Council
| Citation | 135 S.E.2d 515,109 Ga.App. 100 |
| Decision Date | 07 February 1964 |
| Docket Number | No. 40538,No. 3,40538,3 |
| Parties | WALTER L. TALLY, INC. v. Arthur M. COUNCIL |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
The petition of the plaintiff vendee stated a cause of action for money had and received to recover the amount paid under an executory contract of purchase and sale of certain described real property, the terms of which the defendant vendor had allegedly breached by granting an easement in the subject property to a third party; and the verdict for the plaintiff was authorized by the evidence.
This was a suit for money had and received brought by Arthur M. Council against Walter T. Tally, Inc., to recover a sum of money which the plaintiff alleged he had paid the defendant under an executory contract, dated August 1, 1960, for the purchase and sale of certain described real property in DeKalb County, Georgia. The purchase price under said contract, a copy of which was attached to the petition as Exhibit A., was $2500, including a cash payment of $200, and monthly installments in stated amounts. The petition alleged that the defendant had breached this contract by conveying, on July 17, 1961, a portion of the described property to DeKalb County to be used for installing a sewer trunk line through said property.
The defendant in its answer admitted the execution of the contract and the payment of $980 by the plaintiff under the terms of the same. The defendant also admitted that it had granted an easement to DeKalb County to erect and maintain a sanitary sewer through said property and that said sewer had been built by the county. The defendant alleged that the installation of the sewer increased the value of the property and denied that the granting of the easement constituted a breach of contract. The defendant also filed a cross action in which it sought a judgment for the unpaid balance of the purchase price, it being alleged that the plaintiff had made no payments after July, 1961.
The case proceeded to trial before the court without the intervention of a jury, and a judgment was entered for the plaintiff in the sum of $980. The defendant's motion for new trial which contained the general grounds only was denied, and the exception is to that judgment.
Claude Hambrick, Atlanta, for plaintiff in error.
Paul T. O'Connor, Atlanta, for defendant in error.
"Where the vendor breaches an executory contract for the sale of land, the vendee, if not himself in default, may elect to rescind the contract and recover the amount he has paid on the purchase price.' Annotation 59 A.L.R. 189, 223, citing many authorities, including: McDaniel v. Gray & Co., 69 Ga. 433; Lightfoot v. Brower, 133 Ga. 766, 66 S.E. 1094; Higgins v. Kenney, 159 Ga. 736, 747, 126 S.E. 827, 40 A.L.R. 685; Mehrtens v. Knight, 29 Ga.App. 390 115 S.E. 506; Clark v. Powell, 30 Ga.App. 198, 117 S.E. 250; Jones v. Clemons, 35 Ga.App. 552(2), 133 S.E. 744. These cases sustain the proposition thus stated.' Woodruff v. Camp, 101 Ga.App. 124, 112 S.E.2d 831.
The defendant vendor under the terms of the contract of sale was obligated to convey said property by warranty deed to the purchaser at the time the sale was consummated, subject to any incumbrances as specified in the contract. Since there were no incumbrances specified in the contract of sale, it was the vendor's duty...
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Southeastern Land Fund, Inc. v. Real Estate World, Inc.
...nearly as is possible back to the status quo ante. See Lightfoot v. Brower, 133 Ga. 766, 66 S.E. 1094 (1909); Walter Tally, Inc. v. Council, 109 Ga.App. 100, 135 S.E.2d 515 (1964); Woodruff v. Camp, 101 Ga.App. 124, 112 S.E.2d 831 (1960). Cf. Higgins v. Kenney, 159 Ga. 736, 126 S.E. 827 Of ......
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McMurray v. Housworth
...Questions of fact exist as to damages. Judgment reversed. RUFFIN, C.J., and SMITH, P.J., concur. 1. Walter L. Tally, Inc. v. Council, 109 Ga.App. 100, 102, 135 S.E.2d 515 (1964) (citations omitted). 2. See Myers v. Funderburk, 254 Ga.App. 779, 780(1), 564 S.E.2d 27 (2002). 3. 56 Ga. 515 (18......
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Hitchcock v. Tollison, A94A0617
...are inapposite as to this issue; also inapposite are suits for breach of executory contract. See generally Walter L. Tally, Inc. v. Council, 109 Ga.App. 100, 135 S.E.2d 515; Keel v. Anderson, 104 Ga.App. 296(1), 121 S.E.2d 505. However, in Teems v. City of Forest Park, 137 Ga.App. 733, 734,......
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Development Corp. of Georgia, Inc. v. West, 43052
...in default, may elect to rescind the contract and recover the amount he has paid on the purchase price.' Walter L. Tally, Inc. v. Council, 109 Ga.App. 100, 101, 135 S.E.2d 515, 516. 'The party who is in default as to the time may be immediately treated by the other party as though there was......