The allegations of the present petition seeking cancellation of a deed that was executed under the provisions of a power of sale contained in a security deed, failed to allege mutual departure from the terms of the contract and payment or receipt of money under such departure so as to come within the provisions of Code 20-116; nor did the allegations allege a new agreement based on a valid consideration so as to come within the provisions of Code 20115; accordingly, the trial court erred in overruling the defendant's general demurrer to the petition, thus rendering further proceedings nugatory.
J. C. Ivey filed in Clayton Superior Court, against A. E. Maguire, a petition which as amended alleged substantially the following: Petitioner is in possession of and is the owner, subject to a deed to secure debt in favor of Standard Federal Savings & Loan Association, of a described tract of land. There appears on record in the office of the Clerk of the Superior Court of Clayton County a certain instrument purporting to be a deed under power of sale contained in a purported deed to secure debt which appears to have been executed by A. E. Maguire, the defendant, as attorney in fact of petitioner, to A. E. Maguire. This deed purports to have been made pursuant to a sale under power contained in the purported loan deed upon petitioner's default for the months of January through October, 1954, for payments due from petitioner to defendant in the sum of $40 monthly. Said instrument purports for the sum of $500 to have conveyed title to petitioner's property subject to the deed to secure debt in favor of Standard Federal Savings & Loan Association. A copy of the instrument was attached as an exhibit to the petition. Petitioner in the purchase of the property from defendant executed a note for a portion of the purchase price due at the rate of $40 per month, and petitioner believes that he executed to defendant a second security deed, the same being a matter peculiarly within the knowledge of defendant, but petitioner has made all payments due defendant at a rate of $40 per month. In the early part of 1954 defendant agreed that petitioner discontinue such payments as defendant was on the road, and around the first of September, 1954, defendant told petitioner that he again could receive his mail at 408 North Railroad Street, Phenix City, Alabama, to which address petitioner mailed a check on the 6th or 7th day of September, 1954, which was returned to him. On or about September 15, 1954, petitioner again mailed the same check to defendant, bringing the account up to date, and this check was returned to him. On or about October 15, 1954, petitioner mailed another check for the sum of $360 to defendant at said address, which check was also returned. The deed under power of sale constitutes a cloud on petitioner's title to the land. On October 25, 1954, defendant instituted a dispossessory-warrant proceeding in a justice's court against petitioner, to which petitioner filed counter-affidavit and bond, and the case is now pending in the Superior Court of Clayton County. Petitioner cannot protect his rights under any other course of proceedings other than the filing of the present petition. Petitioner prayed: That process and a rule nisi issue; that the purported deed under power of sale be canceled as a cloud on petitioner's title; that the court appoint the Clerk of the Superior Court of Clayton County, or such other person as it deems proper, to receive petitioner's payments due defendant; that the present case be consolidated with the dispossessory-warrant proceeding now pending in Clayton Superior Court for a full and complete determination of all the issues therein; that defendant be enjoined from encumbering or disposing of the property or any equity therein until the issues herein are determined; that petitioner be granted general equitable relief.
Defendant interposed a demurrer to the petition on general and special grounds, which were overruled. Thereafter the case, which had been consolidated with the dispossessory-warrant proceeding, proceeded to trial. At the conclusion of the evidence defendant made an oral motion for a directed verdict, which motion was denied, and the jury returned a verdict for petitioner.
The defendant's amended motion for a new trial was denied, and he excepted to that judgment. He also assigns error in his bill of exceptions on the judgments overruling his demurrer and his oral motion for a directed verdict.
The allegations of the present petition--to the effect that in the early part of 1954 defendant agreed that petitioner discontinue making monthly payments as defendant was on the road, and that subsequently petitioner, upon being told where defendant again could receive his mail, mailed him a check in an amount sufficient to bring the monthly payments up to date, which check was returned to him--failed to allege mutual departure from the terms of the contract and payment or receipt of money under such departure so as to come within the provisions of Code 20-116, which provides: "Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement."
The above Code section is a codification of headnote 2 of Eaves & Collins v. Cherokee Iron Co., 73 Ga. 459, which is as follows: "When a contract is in writing, each party has a right to expect the other to do precisely what he promises; but if, in the course of the execution of its terms--the carrying them into practical execution in a continuous business--some of these terms are departed from, and money is paid and received on that departure for some time, then, before the one can recover from the other for failure to pursue the letter of the agreement, he must notify him with clearness of his purpose thenceforth to stand on the original contract. Until such notice, the departure is a sort of new agreement."
Clearly the present case fails to come within the terms of said Code section because it is not alleged that in the course of the execution of the contract the parties departed from its terms, and paid and received money under such departure. See in this connection Kennesaw Guano Co. v. Miles & Co., 132 Ga. 763 (64 S. E. 1087); Massachusetts Benefit Life Assn. v. Robinson, 104 Ga. 256 (3) (30 S. E. 918, 42 L. R. A. 26); Hasbrouck v. Bondurant & McKinnon, 127 Ga. 220 (2) (56 S. E. 241); Morrison v. Roberts, 195 Ga. 45, 46 (2) (23 S. E. 2d 164).
Nor did the allegations allege a new agreement based on a valid consideration so as to come within the provisions of Code 20-115, which provides: "One simple contract as to the same matter, and on no new consideration, does not destroy another between the same parties."
In order to allege a novation it would be necessary to show that another contract containing other and different terms from the original contract had been agreed upon and that there was a consideration for the novation. The plaintiff failed to allege a novation because no consideration for the new contract was set forth and the terms of the new agreement were indefinite and uncertain. Collier Estate v. Murray, 145 Ga. 834
, 851 (90 S. E. 52); Christian v. Bremer, 199 Ga. 285 (3)
(34 S. E. 2d 40); Williams v. Rowe Banking Co., 205 Ga. 770
(55 S. E. 2d 123); Quillian v. Mabry, 88 Ga. App. 817 (2)
(78 S. E. 2d 97).
Accordingly, the trial court erred in overruling the defendant's general demurrer to the petition, thus rendering further proceedings nugatory.
Judgment reversed. All the Justices concur.