Woodland Hills Co v. Lawton

• Citation: 142 S.E. 208,37 Ga.App. 742
• Decision Date: 20 February 1928
• Docket Number: (No. 18152.)
• Parties: WOODLAND HILLS CO. v. LAWTON.
• Court: United States Court of Appeals (Georgia)

37 Ga.App. 742

142 S.E. 208

WOODLAND HILLS CO.

v.LAWTON.

(No. 18152.)

Court of Appeals of Georgia,

Division No. 2.

Feb. 20, 1928.

Rehearing Denied March 3, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by the Woodland Hills Company against M. P. Lawton. Judgment for defend-. ant was affirmed by the appellate division of the municipal court of Atlanta, plaintiff's motion for new trial was overruled, and plaintiff brings error. Affirmed.

Noah J. Stone, of Atlanta, for plaintiff in error.

Sutherland & Tuttle, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1] 1. Where a contract for the sale of land provides that, upon default of the purchaser in the payment of any sum due as purchase money under the contract, the seller may at his option terminate the contract, and re-enter and take possession of the premises, the taking possession of the land by the seller, by placing a third person thereon as a tenant, after a default by the purchaser in the payment of an amount due on the purchase money, is sufficient to authorize, if not demand, the inference that the seller had exercised the option given him under the contract to terminate it upon failure of the purchaser to promptly perform his obligation to pay the purchase money.

2. This being a suit by the seller against the purchaser to recover the unpaid balance contracted to be paid upon the purchase money, the evidence authorized the inference that the plaintiff had rescinded the contract and retaken possession of the premises, and had released the purchaser from further obligation under the contract. The verdict found for the defendant was therefore authorized.

3. The plea alleging the exercise by the plaintiff of the option given him under the contract, to cancel and terminate the contract upon the failure of the defendant to complywith the obligations as to payment, contains a sufficiently defined allegation as to the time of the exercise of the option by the plaintiff when it alleges that the plaintiff exercised this option, and that the date of such exercise is unknown to the defendant. It was not error to overrule a demurrer to the plea upon the ground that the date of the exercise of the option was not alleged. This is true, although the allegation was made by way of amendment, after a special demurrer to the original plea had been sustained with leave to amend, upon the ground that the date of the exercise of the option was not alleged. The sufficiency of a plea as amended may, both as respects general and special demurrers thereto, be determined upon the merits alone, and without reference to any previous order, with leave to amend, sustaining a demurrer to the plea before amendment. The former orders, being conditional,...