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SCHEER et al. v. DOSS.
Specific performance. Before Judge Shaw. Fulton Superior Court. May 11, 1954.
MOBLEY, Justice.
The allegations of the amended petition in this case were sufficient to set forth a cause of action for specific performance of a written contract for the purchase of land, and, accordingly, the trial court did not err in overruling the general demurrer thereto.
Mrs. Kathleen E. Doss filed in Fulton Superior Court, against Fred O. Scheer and others, doing business as Scheer Development Company, and S. H. Mauldin, Jr., a petition, which as amended alleged substantially the following: On July 31, 1953, the petitioner and Scheer Development Company entered into a written contract whereby the petitioner agreed to purchase and Scheer Development Company agreed to sell described realty for the price of $5,000, of which $100 was paid as earnest money. The contract provided: "Closing date will be set by buyer on or before September 1, 1953." On the last-mentioned date the petitioner was unable to close the loan and the defendants agreed to allow her sufficient time to process a loan upon the property. At no time did the defendants notify the petitioner that time was of the essence of the contract or that the contract must be closed by a certain date. On October 26, 1953, the defendant Fred O. Scheer was notified that the loan required by petitioner would be ready for closing on October 28 and that the sale could be consummated at that time. Scheer thereupon furnished necessary information for preparing the closing and stated no objection thereto. The defendants failed to appear at the time of closing, and on October 28, 1953, notified the petitioner through their attorney that the contract was terminated. Subsequently, on November 20, 1953, the defendants conveyed the realty to Mauldin, who took with full knowledge of the petitioner's contract of purchase. The market value of the realty was $7,500 at the time of the contract and remained at that valuation until the date the petition was filed. On November 27, 1953, the petitioner tendered to the defendants the sum of $4,900, the balance due under the contract, which tender was refused. Petitioner offers to do equity and hereby tenders into court and offers to pay to defendants the balance of $4,900 due under the contract. Petitioner has been damaged in the sum of $311.50 for expenses incurred on her application for a loan to purchase the realty, including title-examination fees and fees charged for the preparation of loan papers. Petitioner is a contractor engaged in the purchase of real estate, the subdividing of such property, and the building of houses thereon, which fact was well known to defendants. The prayers were: that process issue; that specific performance of the contract be decreed; that, if for any reason specific performance cannot be decreed, the petitioner have judgment against the defendants in a stated amount; and that petitioner have general equitable relief. Copies of the contract of purchase and of the letter notifying petitioner that the contract had been terminated were attached as exhibits and made parts of the petition.
The defendants filed a demurrer on general and special grounds, which was renewed to the petition as amended. The trial court overruled the general ground of demurrer to the petition as amended, and overruled in part and sustained in part the special grounds of demurrer.
To the judgment overruling the general grounds of demurrer to the petition as amended the defendants excepted.
A petition for specific performance of a contract for the sale of land, is sufficient as against general demurrer, where it is alleged that the contract is in writing, signed by both of the parties, is certain and fair, and is for an adequate consideration and capable of being performed. Code 37-801; Clark v. Cagle, 141 Ga. 703 (81 S. E. 21, L. R. A. 1915A, 317); Irvin v. Locke, 200 Ga. 675, 676 (38 S. E. 2d 289). However, counsel for the defendants insist that the general demurrer should have been sustained because it appears from the petition that the purchaser failed to consummate the contract on September 1, 1953, and again on October 1, 1953.
"Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so." Code 20-704 (9). The contract under consideration contained the stipulation, "Closing date will be set by buyer on or before September 1, 1953," and a letter from counsel for the defendants to the petitioner, a copy of which was attached to the petition, stated that the closing date was subsequently set for October 1, 1953, at petitioner's request. "In order for time to be treated as of the essence of a contract for the sale of land, it should clearly appear therefrom that such was the intention of the parties; as, for example, by a provision that the agreement shall be void unless the act named be completed by a certain day, or by other equivalent expression." Mangum v. Jones, 205 Ga. 661, 667 (54 S. E. 2d 603). "Merely prescribing a day on or before which the act must be done does not render the time essential with respect to such act . . . Of course the delay must not be wilful, must not be unreasonably long, and must not have occasioned damage which will not admit of compensation. And where there has been a failure to comply within the time stipulated, the other party may, by notice, fix upon and assign a reasonable time for completing the contract, and may call upon the party in default to do the act to be done by him within this period; and the time thus allowed then becomes essential, and if the party in default fails to perform before it has elapsed, the court will not aid him in enforcing the contract, but will leave him to his legal remedy." Ellis v. Bryant, 120 Ga. 890, 893 (48 S. E. 352).
Accordingly, the trial court did not err in overruling the general demurrer to the petition as amended.
Judgment affirmed. All the Justices concur.
Henry M. Hatcher, Johnson, Hatcher & Meyerson, contra.
Cohen, Roberts & Kohler, Claude Hambrick, Jr., for plaintiffs in error.
Saturday May 23 03:49 EDT

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