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Specific performance. Houston Superior Court. Before Judge Long.
QUILLIAN, Justice.
1. There is no conflict between the act of 1957 found in Code Ann. 6-701 and the act of 1959 embodied in Code Ann. 110-1208. However, if there were, the act of 1959, which explicitly forbids the right of appeal from the denial of a motion for summary judgment, would prevail.
2. A court of equity, in a proper case, will decree specific performance of an option to purchase where there is a definite and specific statement of the terms of the contract.
( a ) There is no ambiguity in the instant contract by which the optionors agree "as joint and several owners" to convey described lands for a stated purchase price. Parties may enter into joint contracts to do whatever may be legally done by more than one individual.
3. A plea alleging a tender of the amount due, when due, and that tenderor has at all times been ready, willing and able to pay such amount is not subject to a general demurrer.
4. Equity will not require a useless formality. Therefore, it is unnecessary to make tender where the vendor, by conduct or declaration, proclaims that, if a tender should be made, he would refuse to accept it.
5. An attack pointing out the defect of duplicity must be raised by special demurrer; such defect is not reached by general demurrer.
R. A. Wilkerson sued Henry Burnam and Bessie Burnam to compel them by decree of specific performance to convey certain lands to him according to the terms of an option. The option recited that it was given in consideration of one dollar and obligated the optionors, husband and wife, as joint owners and several owners of described real estate, to convey the same to the optionee for $16,000 provided the option was exercised by him within 120 days from the date of the instrument, which was October 31, 1959. The petition as amended alleged that the defendant optionors were the owners of the land described in the option; that on October 31, 1959, and prior to February 27, 1960, the exact date not being remembered by the plaintiff, at a time when the plaintiff and the defendants were on or about the premises described in the option, the plaintiff advised the defendants orally that he accepted the option, was ready, willing and able to purchase and pay for the property described therein, and then and there tendered to the defendants the purchase price of $16,000. The defendants refused the tender and have at all times since refused to comply with their contract. The plaintiff has at all times since said exact unknown date been ready and able to purchase and pay for said property, and he here and now makes a continuing tender of the purchase price and performance of the contract.
The petition further alleged that, on February 26, 1960, the plaintiff called Henry Burnam on the telephone, talked with him and advised him that the plaintiff would go to the defendants' home on February 27, 1960, to pay the $16,000 purchase price and consummate the sale of the land described in the option, notwithstanding the defendants had previously refused to accept the price of the lands agreed upon in the option; that, on the morning of February 27, 1960, the plaintiff visited the defendants' home, but that they were not at home. The petition set forth other facts to show that the defendants intentionally absented themselves from their home to avoid him, and alleged that, although the plaintiff sought the defendants until late in the night of February 27, 1960, and that in this manner they prevented his again tendering to them the purchase price of the lands and effecting a consummation of the sale of the same.
The plaintiff avers that this conduct on the part of the defendants was tantamount to a proclamation by the defendants that they would not accept a tender if legally made, and is equivalent to a repudiation of the contract by the defendants, is a waiver of tender by the defendants and excuses the plaintiff from making tender.
After being served with the suit, the defendants filed a motion for summary judgment on various grounds, which motion was in proper form and duly verified. The defendants also filed a general demurrer to the petition, and upon the motion for summary judgment being denied and the demurrer being overruled, they excepted.
1. The defendants, Henry and Bessie Burnam, plaintiffs in error here, insist that, notwithstanding Code Ann. 110-1208 (Ga. L. 1959, pp. 234, 236) explicitly denying the right of appeal to a judgment overruling a motion for summary judgment, this court should consider the exception taken in their bill to the judgment overruling their motion for such relief made in this case.
The act of 1957 (Ga. L. 1957, pp. 224, 230) embodied in Code Ann. 6-701 contains the provision: "Where bill of exceptions is permissible, all judgments, rulings, or orders rendered in the case which are assigned as error, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone, and without regard to whether the judgment, ruling or order excepted to was final or was subject to review by some other express provision of law contained in this section, or elsewhere." It is the defendants' contention that the two acts are inconsistent and that the act of 1957 should be given preference and applied in the present case.
The act of 1953 (Ga. L. 1953, pp. 440, 453; Code Ann. 6-905) dispensed with exceptions pendente lite which were formerly employed to preserve antecedent rulings made in the progress of the trial. Thus, the quoted clause of the 1957 act was simply intended to allow all such rulings as were formerly the subject of exceptions pendente lite to be brought to the appellate courts together with exceptions to the final judgment entered in the case, and was not intended to provide that rulings that were not previously subject to exceptions could be appealed.
The rule that must be applied here is stated in Board of Tax Assessors v. Catledge, 173 Ga. 656 (1) (160 SE 909): "The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. As a general rule, the use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction, and indeed forbids an interpretation of the meaning of the words employed by the General Assembly."
Hence, it is apparent that there is no conflict in the act of 1957 and the act of 1959, but if there were, the act of 1959 would prevail since it is the last legislative expression on the subject. Lamar v. Allen, 108 Ga. 158 (33 SE 958).
2. We are cognizant of the rule announced in Williams v. Manchester Bldg. Supp. Co., 213 Ga. 99, 101 (97 SE2d 129): "A court of equity will not decree the specific performance of a contract for the sale of land unless there is a definite and specific statement of the terms of the contract. The requirement of certainty extends not only to the subject matter and the purpose of the contract, but also to the parties, consideration, and even the time and place of performance, where these are essential. Its terms must be such that neither party can reasonably misunderstand them." However, the option contract in the present case is couched in plain language and its terms are direct and specific as to the parties, consideration and time and manner of performance. Its terms could not be reasonably misunderstood.
3. The defendants correctly contend that an essential allegation of a petition for specific performance brought by an optionor is that the purchase price of the land has been paid, or that a valid tender of the same to the optionee has been made, unless such tender is waived as in the case where the optionee by declarations or conduct waives such tender. There is no averment in the petition that the purchase money was paid, but there are allegations that a tender was actually made prior to the filing of the suit, and that the defendants by their declarations and conduct indicated that tender of the purchase money, if made, would not be accepted.
The defendants urge that the petition does not show, except by a general allegation amounting only to a conclusion of the pleader, that tender of the purchase price agreed upon in the option was actually made to them. The mere general allegation that a tender has been made does amount to no more than a conclusion of the pleader and is insufficient. In the case of Cothran v. Scanlan, 34 Ga. 555, 557, it is held: "The general statement that tender was made, is not enough. It is as defective as a general averment of fraud. That a tender was made is a conclusion of the pleader simply. He must state the facts which constitute a legal tender."
A similar ruling with explanation is found in Jolly v. Jones, 201 Ga. 532 (1) (40 SE2d 558), "In order to support a suit by a purchaser for specific performance of a contract for the purchase and sale of land, it must be made to appear that before the institution of the action the purchaser had paid the purchase-money in accordance with the terms of the contract, or else had made an actual unconditional tender thereof, or that such a tender had been waived. Terry v. Keim, 122 Ga. 43 (49 SE 736); Roberts v. Mayer, 191 Ga. 588 (1) (13 SE2d 382).
"While, under the provisions of the Code, 20-1105, the rule of the common law that an actual production of the money must be shown (see McGehee v. Jones, 10 Ga. 127, 132) has to that extent been relaxed since if the tender is in money 'the coin need not be actually presented, unless demanded nevertheless, there must be an actual, present bona fide offer to pay; and such requirement is not met by merely evidencing a willingness to pay, or by an offer or intention to make a tender. Baldwin v. McLendon, 164 Ga. 387 (138 SE 775); Pope v. Thompson, 157 Ga. 891 (2) (122 SE 604); Payne v. Power, 140 Ga. 759 (79 SE 771)."
We do not construe the petition to attempt in general terms to allege tender of the purchase price stipulated in the option. On the contrary, the time, place and circumstances in which the plaintiff tendered to the defendant the sum of $16,000, the full purchase price agreed upon, was definitely alleged. There was the further averment that the plaintiff at the time of making the tender, which was prior to the filing of the suit, was ready, willing and able to pay the sum tendered and has ever since been ready and able to pay the amount tendered. The rule is stated in Toorney v. Read & Gresham, 133 Ga. 855, 856 (4) (67 SE 100): "A plea of tender alleging a tender of the amount of principal and interest due, when due, and that tenderor had at all times been ready and willing and able to pay said amount, is not subject to general demurrer." Similar holdings are found in Bailey v. Turner, 150 Ga. 823 (4) (105 SE 471); Thurman v. Lee, 181 Ga. 408 (182 SE 609); Clark v. C. T. H. Corp., 181 Ga. 710, 717 (184 SE 592).
The allegations of tender in the present case measure up to the requirements of Code 20-1105 and standards of good pleading.
4. The petition sufficiently set forth not only a valid tender of the agreed purchase price stipulated in the option, but also related facts which if true showed that the optionors, defendants in this case, by their declarations and conduct waived such tender. It was alleged that upon tender being made before the suit was brought it was refused by the defendants.
The petition further alleged that before the time in which the option could, according to its terms, be exercised, the plaintiff notified the defendants that he would come to their home on the following day to pay the purchase money and close the sale of the lands, and that the defendants left their home and avoided contact with the plaintiff, thus preventing him of making further tender of the amount he was required to pay for the lands described in the option. It is a familiar rule that: "Since equity will not require a useless formality, it is unnecessary to make a tender where the vendor, by conduct or declaration, proclaims that, if a tender should be made, acceptance would be refused." Kaplan v. Krantz, 202 Ga. 194 (2) (42 SE2d 371); Fraser v. Jarrett, 153 Ga. 441 (3) (112 SE 487); Black v. Mitner Hotel Inc., 194 Ga. 828, 832 (4) (22 SE2d 780); Higdon v. Dixon, 203 Ga. 67, 71-72 (45 SE2d 423).
5. The defendants finally urge that the petition should have been dismissed because in one count it set forth that a tender was made, and that the defendants by declaration and conduct proclaimed they would not accept the tender if made. In the manner alleged in the petition the two allegations do not appear to be inconsistent. But if they were, or if they tended to set up two grounds of recovery in a single count, the defect was one of duplicity and should have been raised by special demurrer. Grant v. Hart, 192 Ga. 153, 155 (4) (14 SE2d 860); Saliba v. Saliba, 201 Ga. 577, 578 (2) (40 SE2d 511).
Judgment affirmed. All the Justices concur.
Nunn, Aultman, Hulbert & Buice, contra.
John M. Hancock, Jr., for plaintiffs in error.
Friday May 22 22:43 EDT

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