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Action on contract. Fulton Civil Court. Before Judge Etheridge. April 1, 1960.
1. A contract for the sale of real estate providing that the closing shall take place within 30 days of acceptance subject to rezoning and later modified in writing to provide that the closing date shall be extended "from May 26 to June 26, 1959, or will be closed 10 days after zoning is approved," when the contingency in fact occurs and the rezoning is effectuated prior to June 26, is not so vague, indefinite and uncertain, or so lacking in mutuality, as to be unenforceable.
2. Where the proposed purchaser, in ansWer to a request by the plaintiff broker to consummate the contract, announced his refusal to purchase, it was not necessary as a condition precedent to this action for recovery by the broker of the earnest money committed under the terms of the contract to be applied as commissions that the petition further allege a tender by the proposed seller of a deed to the property.
As finally amended, the petition of the plaintiff Bob Todd Realty Company, Inc. against the G. V. Corporation is in two counts seeking recovery of $2,250 for the plaintiff's services as a real-estate broker under the terms of a contract of sale of real estate in which the defendant was the party contracting to purchase, the plaintiff being a party to the contract for the purpose of enforcing its right to payment. The contract provided for earnest money in the sum of $2,250 to be held by the broker until consummation and, on an unwarranted refusal of the buyer to purchase, this money was to apply upon the plaintiff's commission. The $2,250 was paid by check on which payment was later stopped, and an unwarranted refusal to purchase is alleged in the petition.
The original stipulations as to the time of closing were as follows: "2. Closing to be within 30 days of acceptance of this contract. 3. Subject to zoning for A-1 apartments." The contract was accepted on March 26, 1959. On April 21, 1959, the following stipulation was added by amendment signed by both parties: "4. Extension of closing date of this contract for 30 days from April 26, 1959, to May 26, 1959, for purpose of zoning being approved for A-1 apartments." On May 20, the following was again added in like manner: "5. Extension of closing date of this contract from May 26, 1959, to June 26, 1959, or will be closed 10 days after zoning is approved for A-1 apartments." On June 1, the zoning ordinance was passed rezoning the property to "A-1 apartments." The seller was at all times ready, willing and able to convey a marketable title to the defendant. On or about June 10, 1959, after the rezoning had been accomplished, the plaintiff requested that the defendant consummate the purchase of the property, and the defendant refused to do so.
General demurrers to the petition were overruled, and that judgment is assigned as error.
1. "A promise conditional on the doing of some act may be rendered binding by the act, while it may give no right to compel the doing of it." Morrow v. Southern Exp. Co., 101 Ga. 810, 812 (28 S. E. 998). "A contract is not deprived of mutuality by reason of the fact that the liability of both parties is contingent on the happening of a condition precedent." 17 C. J. S. 447, Contracts, 100. In Wehunt v. Pritchett, 208 Ga. 441, 443 (67 S. E. 2d 233) the sale contract was by its terms "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." It was not alleged Spencer Street property had in fact been sold, and the court said: " '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 . . .' 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." (Emphasis added).
The sale contract in question here was binding on no one until and unless the property was rezoned so as to permit the erection of apartments thereon. We need not decide whether the language of the last extension of time "From May 26, 1959, to June 26, 1959, or will be closed 10 days after zoning is approved" meant that the rezoning might be effectuated within a reasonable time after June 26, or meant that the closing date must be June 26, or 10 days after the rezoning, whichever occurred first. The rezoning did in fact take place within the time allowed by the stricter construction of the clause. If by any chance the more liberal construction would have rendered the contract void for uncertainty as to time, then such a construction should not be given unless it is demanded, because "the law leans against the destruction of contracts on the ground of uncertainty." Pierson v. General Plywood Corp., 76 Ga. App. 853, 855 (47 S. E. 2d 605). The petition was not subject to general demurrer on the ground that the contract was unenforceable.
2. It is further contended that the petition sets out no cause of action because there was no proper tender of performance. It is alleged that the seller was at all times ready, willing and able to deliver good title; that the plaintiff requested the defendant to consummate the transaction, and that the defendant refused to do so. A tender is not required where the party to whom the offer is made states that the tender would be refused if made. Groover v. Brandon, 200 Ga. 153 (36 S. E. 2d 84). Under the allegations of the petition it does not appear that the defendant refused to perform because of insufficient tender of the deed to the property or any like reason; he having refused to purchase at all, no tender of the deed was necessary.
Since the petition set out a cause of action there was no error in overruling the general demurrers, Certain special demurrers were also overruled, but as the assignments of error thereon are not argued or insisted on they are not here considered.
Judgment affirmed. Gardner, P. J., Carlisle and Frankum, JJ., concur.
Everett L. Almon, Floyd E. Stonecypher, contra.
Walter E. Baker, Francis G. Jones, Jr., for plaintiff in error.
DECIDED JULY 13, 1960.
Saturday May 23 00:06 EDT

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