Wellmaker v. Wheatley

• Decision Date: 14 June 1905
• Citation: 51 S.E. 436,123 Ga. 201
• Parties: WELLMAKER v. WHEATLEY.
• Court: Georgia Supreme Court

51 S.E. 436

123 Ga. 201

WELLMAKER v. WHEATLEY.

Supreme Court of Georgia

June 14, 1905

Syllabus by the Court.

A paper recited that A. had rented to B. a farm for a given year "with the refusal of buying it next fall for the sum of six dollars per acre," and provided that, if B "does not take the place," any buildings which he is compelled to have shall be paid for by A. at a reasonable price, if they "do not trade." Held, that the legal effect of the paper was to rent the farm to B., and to give him the option of purchasing it at the time and price stated.

In a writing which carries on its face mutual promises, terms and conditions expressed on one side may be the consideration for terms and conditions expressed on the other; and in such a case proof of a consideration different from that expressed in the writing might alter its terms and conditions, and when it would have this effect, parol proof would be inadmissible to change or alter the consideration, or to show that it was not applicable to the promise to which, on the face of the contract, it appeared to apply.

In the absence of proper pleadings asking for a reformation of a written contract, parol evidence is inadmissible to show that the contract does not set forth the real undertaking entered into by the parties.

In a suit by the vendee to compel the specific performance of a contract for the sale of land, it is not necessary that the petition should allege that the vendee has tendered a deed for execution by the vendor, unless, under the terms of the contract, the preparation of the deed devolved upon the vendee.

A contract recited that A. had rented B.'s place, which is not otherwise described, and provided that A. should have an option to purchase the place at a stated amount. Held, that parol evidence could be admitted to identify the place referred to in the contract.

There was no error in overruling the demurrer to the petition, nor in refusing to grant a new trial.

Error from Superior Court, Lincoln County; H. M. Holden, Judge.

Action by C. W. Wheatley against Lowe Wellmaker. Judgment for plaintiff, and defendant brings error. Affirmed.

T. H. Remsen and Jno. T. West, for plaintiff in error.

J. M. Pitner and F. H. Colley, for defendant in error.

COBB J.

Wheatley brought an action for the specific performance of an alleged contract for the purchase of land. The petition alleged the making of the contract, a tender of the purchase money, and the refusal of the defendant to accept the same and make the plaintiff a deed. The defendant demurred to the petition on the grounds that no cause of action is set forth, the contract is unilateral, the petition fails to allege that the contract was in writing, and there is no allegation that the plaintiff prepared and tendered a deed to the defendant. The petition was amended, and a writing of which the following is a copy was set forth as the contract relied on:

"September 19th, 1902. This is to certify that C. W. Wheatley has rented Miss Lowe Wellmaker's place for one thousand pounds of lint cotton for the year 1903, with the refusal of buying it next fall for the sum of six dollars per acre. Said place is to be controlled and protected by said C. W. Wheatley just the same as if it belonged to him. The said C. W. Wheatley agrees to take care of the lands, clear what he can free of charge. If he does not take the place, what buildings he is compelled to have, if any, are to be paid for by Miss Lowe Wellmaker at a reasonable price, if we do not trade. [ Signed] C. W. Wheatley. Lowe Wellmaker."

The defendant renewed her demurrer, and, the same being overruled, excepted pendente lite. In her answer she admitted the execution of the paper, but denied that it constituted an enforceable contract; averring that it was unilateral and without consideration. A verdict was returned in favor of the plaintiff, and, the defendant's motion for a new trial being overruled, she excepted.

1. The proper construction of the paper relied on by the plaintiff as a contract is that the defendant rented the land to the plaintiff for the year 1903, and gave him an option to purchase. It has been held that an agreement by a lessor to give a lessee at the end of the term the "refusal" of the premises for another definite term was merely an expression of preference for the lessee over others, and did not bind the lessor to renew the lease. Aransas Pass Land Co. v. Hanaford, 4 Tex. Civ. App. 286, 23 S.W. 566. A similar construction of the word was given in a case where one person promised to give another "the refusal [of land] when he sold." Deere v. Nelson, 73 Iowa 188, 34 N.W. 809. On the other hand, it has been expressly held that an agreement in a lease to give the lessee "the refusal" for another term bound the lessor to rent to the lessee for that term upon the same terms and conditions as the first term. Steen v. Scheel, 46 Neb. 252, 64 N.W. 957; McAdoo v. Callum, 86 N.C 419; Tracy v. Albany Ex. Co., 57 Am.Dec. 538. "The refusal of buying [the land] next fall for the sum of six dollars per acre," and the agreement that the...