1. Whether or not the petition before its amendment was defective, and "the contract too vague, indefinite and uncertain in the consideration and terms thereof to constitute a valid written contract," the effect of the order sustaining the general demurrer was to adjudicate that the contract was defective for the reasons stated. The plaintiff acquiesced in this ruling by filing an amended petition, which amended petition alleged neither fraud, accident, nor mistake in the terms of the original contract; and, under the law of the case, the amended petition failed to state a cause of action. Rivers v. Key, 189 Ga. 832 (7 S. E. 2d, 732); Gilleland v. Welch, 199 Ga. 341 (34 S. E. 2d, 517).
2. In the absence of waiver by the defendant, the plaintiff must tender the purchase price according to the contract before instituting an action for specific performance.
Walter H. Blake filed a petition for specific performance against C. L. Williams, and in substance alleged: On July 10, 1950, the defendant agreed to sell, and the plaintiff agreed to buy, a piece of improved property located in Fulton County, a copy of the contract being attached and marked Exhibit "A." At the time of entering into the contract, the plaintiff paid to the defendant's agent $250 earnest money, as set forth in the contract. The plaintiff at all times, and at the time of filing this petition, was ready, willing, and able to perform the contract, but the defendant has wrongfully refused to perform. On January 25, 1951, the defendant told the plaintiff that he was not going to convey the property to the plaintiff, and this was a violation of the contract. As a result of the refusal of the defendant to complete the contract, the plaintiff has been deprived of the use of the property since September 1, 1950, and the reasonable value of the use of the house is $150 per month. The plaintiff has no adequate remedy at law. The prayers were for process, that the defendant be restrained and enjoined from selling, transferring, or encumbering the property described in Exhibit "A," that the defendant be compelled by decree to perform the contract, that the plaintiff have damages in the amount sued for, and for other relief.
The contract, Exhibit "A," was on a printed form, bearing a notation that it was a "Standard Sales Contract," in which the plaintiff agreed to buy, and the defendant to sell, through McNabb Realty Company, Lot No. 7 in a described subdivision "with a house thereon known as 281 Maddox Way." The contract contained the following provisions: "Buyer to secure a maximum FHA loan estimated at $8500; both principal and interest payable in equal monthly installments over a period of twenty years . . . Seller agrees to furnish good and marketable title to said property and Buyer shall have a reasonable time in which to examine the same." Under the heading, "Special Stipulations," it was provided: "Taxes to be prorated on closing. Deal to be closed on or before August 15, 1950. Possession to be given on or before September 1, 1950. This contract is subject to the Buyer being able to secure the above mentioned loan; also with the understanding that no part of the expense of paving Maddox Way is to be borne by the Buyer."
The defendant filed general and special demurrers, the grounds of general demurrer being: (1) The petition as a whole fails to set forth a cause of action. (2) The contract attached to the petition, marked Exhibit "A," is too vague, indefinite, and uncertain in the consideration and terms thereof to constitute a valid written contract such as could be enforced by a decree of specific performance, or afford a basis for damages for breach thereof. (3) The petition shows upon its face that the plaintiff is barred by laches.
Within the time provided by the order of the judge, the plaintiff filed an amended petition, which was allowed, subject to objection and demurrer. In substance the amended petition, as later amended, alleged: On July 10, 1950, the plaintiff and the defendant entered into a contract by the terms of which the defendant agreed to sell, and the plaintiff to buy, certain real estate in Fulton County, a copy of the contract being attached, marked Exhibit "A," and made a part thereof. The plaintiff has paid to the defendant's agent $250 earnest money, as set forth in the contract. At the time the contract was entered into, the parties contemplated that the defendant would build a house upon the property according to agreed plans and specifications. The house was to be completed and the transaction closed on or before August 15, 1950, possession to be given on or before September 1, 1950. The plans and specifications were purchased by the plaintiff, and orally agreed upon by the plaintiff and the defendant. The parties agreed that the completed structure would meet Federal Housing Administration standards and requirements, and upon completion of the structure the plaintiff would be given a reasonable opportunity to secure a loan under the approval of the F. H. A. On the dates of August 15 and September 1, 1950, the house was not completed, and the defendant was unable to convey the property under the terms of the contract. On these dates, and at all times subsequent thereto, the plaintiff has been ready, willing, and able to perform the contract, and has so informed the defendant. The petition further alleged:
"8. Subsequent to August 15, 1950 and until January 25, 1951, the plaintiff has repeatedly urged the defendant to complete the house and to close their contract and during this entire period of time the defendant has recognized the contract and has assured the plaintiff that the house would be completed at the earliest possible date. This assurance was given by the defendant to the plaintiff on the premises heretofore described, at the defendant's office, and over the telephone on numerous occasions, including the dates of September 15, November 25 and December 20, 1950 and January 2 and January 5, 1951. The defendant has recognized the continued existence of the contract subsequent to August 15, 1950 in the following ways: (a) By his assurances to the plaintiff of the early completion of the house on the dates heretofore named. (b) By his oral request on the premises on September 15, 1950 to the plaintiff to apply to the Georgia Power Company for electrical service for the house. (c) By his notice on November 25, 1950 to the defendant, as more particularly set out in paragraph 9 of this petition. (d) By the request of the defendant to the plaintiff on December 20, 1950 for a revised set of plans for the benefit of the Federal Housing Administration. (e) By informing the plaintiff again on January 5, 1951 of the readiness of the house for the Federal Housing Administration inspection. (f) By regular periodic discussions by the defendant with the plaintiff of the problems of completing the house, meeting the Federal Housing Administration inspections, the probable time of completion of the house, and probable dates for closing the transaction.
"9. On or about November 25, 1950 the defendant, through his agent, the McNabb Realty Company, notified the plaintiff that the house was ready for the final Federal Housing Administration inspection and that the plaintiff should proceed with his loan application.
"10. Subsequent to November 25, 1950 the plaintiff made all arrangements for a loan through D. L. Stokes & Company and under approval of the Federal Housing Administration.
"11. As late as January 5, 1951 the plaintiff was informed by the defendant that the house was being made ready for a final Federal Housing Administration inspection for sale to the plaintiff under the contract of January 10, 1950. The plaintiff was orally informed on the premises heretofore described.
"12. Until the date of January 25, 1951 the defendant and the plaintiff continued to negotiate concerning the closing of the transaction. The plaintiff and the defendant every few days discussed the items yet to be completed in the house, the work necessary for Federal Housing Administration approval, and the probable date the house would be completed, and the probable date occupancy could be given.
"13. On January 25, 1951 the defendant verbally told the plaintiff that he was not going to convey the property to him at any time or under any conditions.
"14. On January 25, 1951 the plaintiff was ready, willing and able to perform his contract, and a loan under the terms of the contract had been approved, and all money for the closing of the transaction was available to the plaintiff.
"15. Plaintiff remains ready, willing and able to perform the contract and hereby tenders into Court and offers to pay to the defendant the agreed purchase price according to the terms thereof.
"16. The plaintiff has been deprived of the use of the property since January 25, 1951, the reasonable market value of which is One Hundred Fifty ($150.00) Dollars per month.
"17. The reasonable market value of the property agreed to be conveyed is at this date Twelve Thousand ($12,000.00) Dollars.
"18. The cost to plaintiff of buying a lot equal in value to the lot described herein and building a house thereon according to the plans and specifications agreed upon in this contract would be Twelve Thousand ($12,000.00) Dollars.
"19. The Two Hundred Fifty ($250.00) Dollars in partial payment paid by the plaintiff to the defendant on July 10, 1950 has never been returned to the plaintiff or tendered to him by the defendant."
The prayers were for process, that the defendant be enjoined from transferring or alienating the property described in Exhibit "A," that the defendant be compelled by decree to convey the property to the plaintiff, that, if specific performance can not be decreed, the plaintiff have judgment against the defendant in the sum of $2500 as damages, and for other relief.
To the petition, as amended, the renewed general demurrers of the defendant were sustained, and the exception is to that judgment.
1. Counsel for the plaintiff insist in their brief that "the plaintiff sues on a contract fully evidenced by the written memorandum made a part of the petition and on no other contract."
The original petition for specific performance was based solely upon the written contract (attached to and made a part of the amended petition), and without reference to any other contract in writing or in parol. To this original petition the defendant filed a general demurrer, in which it was urged that "the contract marked Exhibit 'A' is too vague, indefinite, and uncertain in the consideration and terms thereof to constitute a valid written contract." This ground of demurrer was sustained by the trial judge, and there was no exception to this ruling.
In Douglas v. Langford, 206 Ga. 864
(59 S. E. 2d, 386), it was held: "Where a general demurrer to a count of a petition is sustained with leave to amend, and the plaintiff does not except to the order but files an amendment, the ruling on general demurrer becomes. the law of the case." It follows that in the present case we have a solemn adjudication that the written contract upon which the plaintiff declared is too vague, indefinite, and uncertain to support a decree for specific performance. "Whether that ruling was right or wrong it is the law of the case, and is conclusive upon all parties thereto." Darling Stores Corp. v. Beatus, 197 Ga. 125
(28 S. E. 2d, 124), and cases cited.
The amended petition did not purport to add to the written contract which the trial judge had adjudicated too vague, indefinite, and uncertain to support a decree for specific performance. The amended petition related only oral agreements and negotiations between the parties subsequent to the written contract. In so far as the plaintiff seeks to recover on the written contract, attached to the original and amended petitions as Exhibit "A," he is concluded by the law of the case that such contract is too vague, indefinite, and uncertain to support a decree for specific performance. Douglas v. Langford, supra; Darling Stores Corp. v. Beatus, supra.
2. "In a suit by the purchaser for specific performance of a contract for the sale of land, it should be made to appear that before institution of the action the plaintiff had paid or tendered the purchase-money according to the contract, or that such had been waived by the defendant. Terry v. Keim, 122 Ga. 43 (49 S. E. 736)." Roberts v. Mayer, 191 Ga. 588 (13 S. E. 2d, 382); Gilleland v. Welch, 199 Ga. 341 (3) (34 S. E. 2d, 517); McKown v. Heery, 200 Ga. 819, 821 (38 S. E. 2d, 425); Jolly v. Jones, 201 Ga. 532 (40 S. E. 2d, 558); Washington Manufacturing Co. v. Wickersham, 201 Ga. 635, 639 (40 S. E. 2d, 206). Mere refusal to carry out the contract will not dispense with a proper tender. Roberts v. Mayer, supra (at page 591). "Tender can not be avoided by a promise to pay, or an assertion in pleadings of a willingness to pay." Forrester v. Lowe, 192 Ga. 469, 474 (15 S. E. 2d, 719). Dissatisfaction with a proposed sale and a statement by the vendor that he "will not make a deed until made so to do by the court" will not dispense with the necessity of a lawful tender before the institution of a suit for specific performance of a contract. Martin & Smith v. Thompson, 141 Ga. 31 (3) (80 S. E. 318). Under the foregoing rules, a lawful tender was not dispensed with prior to the filing of the petition for specific performance by the alleged refusal of the defendant to comply with his contract.
The action of the trial judge in dismissing the amended petition on general demurrer was not error.
Judgment affirmed. All the Justices concur.