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Equitable petition. Before Judge Whitman. Fulton Superior Court. June 20, 1951.
ATKINSON, Presiding Justice.
Where a petitioner sought specific performance of a conditional contract for the purchase of a described house and lot, but the petition failed to allege that the express condition had been met, no right to the relief sought was set forth.
H. W. Pritchett filed in Fulton Superior Court, against Miss Clyde Wehunt, a petition, count one of which as amended alleged substantially the following: The defendant is the owner of a described house and lot known as 613 Jefferson Avenue in the City of East Point. On July 7, 1959, the petitioner and the defendant entered into a written contract whereby the petitioner agreed to purchase and the defendant agreed to sell the realty at the price of $15,750. Acting in reliance upon the contract, the petitioner proceeded, through the Atlanta Title Company, to have a title search made of the property, and on August 9, 1950, notified the defendant orally that he was ready to complete the purchase. On August 21, 1950, the petitioner was notified that the defendant would "not try to enforce" the contract. The petitioner thereupon notified the defendant by registered letter, dated August 25, 1950, that he was ready to complete the purchase, but the defendant failed and refused to complete the transaction. Thereafter, on September 1, 1950, the petitioner offered to perform his obligations under the contract, and tendered to the defendant $5000 cash and a note and mortgage for $10,750, in accordance with the terms of the contract, and also a title policy issued by the Atlanta Title Company covering the balance of $10,750; but the defendant stated that she would not accept the tender and that she would not complete the transaction. The petitioner has spent $235 in checking the title to the property and in obtaining a title policy covering the loan of $10,750. The petitioner is ready, willing, and able to perform his part of the contract, and has complied with all of its conditions. He offered to perform the contract in accordance with its terms, and does hereby make a continuing offer so to do. The defendant is attempting to sell the property to other parties, and unless she is enjoined she is likely to transfer or encumber it.
Count two seeks specific performance of a written contract, dated July 8, 1950, for the purchase by petitioner from the defendant of a vacant lot adjoining the premises involved in count one, which contract was conditioned upon the final consummation of the contract for purchase of the house and lot. Except as indicated, the allegations are similar in each count.
The petitioner prayed: that process issue; that the defendant be required by a decree of specific performance to convey the premises to the petitioner by warranty deed; that she be enjoined from transferring or encumbering the premises; that the petitioner have reasonable attorneys' fees and costs; and that he recover such other relief as may be equitable and just.
(After stating the foregoing facts.) The written contract sought to be specifically performed in count one contained the clause: "This contract is conditioned upon the final consummation of the sale of property known as 605 Spencer Street, East Point, Georgia, as per contract secured by Tucker Realty Co." While it is alleged that the petitioner was the owner of the Spencer Street property, and that the provision regarding its sale was put into the contract for his benefit alone, nevertheless, the obligations in the sales contract were not mutually binding in that, although the defendant agreed to sell the realty to the petitioner, the latter's promise to buy was expressly conditioned upon the final consummation of the sale of his Spencer Street property.
"The test of mutuality is to be applied as of the time the contract is to be enforced; and if the promisee accomplish the object contemplated, then the promise is rendered valid and binding. 'A promise may be nudum pactum when made because the promisee is not bound, but it becomes binding when he subsequently furnishes the consideration contemplated by doing what he was expected to do.' " Hall v. Wingate, 159 Ga. 630 (1c), (126 S. E. 796); Hollingsworth v. Peoples Bank of Carrollton, 179 Ga. 704 (3), (177 S. E. 743). However, the present petitioner was not bound to buy until he sold his Spencer Street property. As long as he was not bound to buy, the defendant was not bound to sell. No valid and enforceable contract could arise between the parties until the performance of the condition by the petitioner. The contract in question shows on its face that it is lacking in mutuality, and that such lack of mutuality can be cured only by a meeting of the condition therein expressed. Accordingly, the petition in failing to allege a meeting of the condition, fails to set forth a cause of action for specific performance.
Furthermore, "specific performance is not a remedy which either party can demand as a matter of absolute right, and will not in any given case be granted unless strictly equitable and just. Mere inadequacy of price may justify a court in' refusing to decree a specific performance of a contract of bargain and sale; so also may any other fact showing the contract to be unfair, or unjust, or against good conscience. And in order to authorize specific performance of a contract, its terms must be clear, distinct, and definite. A petition for specific performance, which fails to allege a case authorizing the relief sought under the application of the above-stated rules, is subject to demurrer." Shropshire v. Rainey, 150 Ga. 566 (2), (104 S. E. 414). Applying the above-stated principles of law to the pleadings of the present case, where the petitioner sought specific performance and alleged that the purchase price had been tendered, but the petition failed to show the value of the house and lot so as to enable the court to determine that the contract was fair, just, and not against good conscience, no right to the relief sought was set forth. Coleman v. Woodland Hills Co., 196 Ga. 626 (2), (27 S. E. 2d, 226); Ogletree v. Ingram & LeGrand Lumber Co., 207 Ga. 333 (3), (61 S. E. 2d, 480).
Accordingly, the trial court erred in overruling the defendant's general demurrer, and further proceedings were nugatory.
Judgment reversed. All the Justices concur.
Smith, Kilpatrick, Cody, Rogers & McClatchey and Sidney Haskins, contra.
Phillips, Johnson & Williams, for plaintiff in error.
Saturday May 23 05:40 EDT

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