Branan & Schmitz Realty, Inc. v. Ballard

Court of Appeals of Georgia

Branan & Schmitz Realty, Inc. v. Ballard

162 S.E.2d 16, 117 Ga. App. 758, 1968 Ga. App. LEXIS 1223

CourtCourt of Appeals of Georgia

DecidedMay 9, 1968

Docket43413

StatusPublished

Cited by5 cases

This text of 162 S.E.2d 16 (Branan & Schmitz Realty, Inc. v. Ballard) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Branan & Schmitz Realty, Inc. v. Ballard, 162 S.E.2d 16, 117 Ga. App. 758, 1968 Ga. App. LEXIS 1223 (Ga. Ct. App. 1968).

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Opinions

Bell, Presiding Judge.

A contract for the sale of realty must expressly state the consideration or it must furnish a key by which the amount and terms of the purchase price can be ascertained; if the contract furnishes a key to the details of the consideration, that is sufficient. Muller v. Cooper, 165 Ga. 439, 442 (141 SE 300). If the terms of the written agreement show a gross consideration including the assumption of an incumbrance which is properly identified in'the agreement plus payment of [759]*759the balance of the purchase price in cash, the terms of payment can be ascertained by reference to the incumbrance and the contract is thus capable of enforcement. See Massell Realty Co. v. Hanbury, 165 Ga. 534, 544 (141 -SE 653); Baker v. Lilienthal, 176 Ga. 802 (169 SE 28); Sturdivant v. Walker, 202 Ga. 585 (5) (43 SE2d 527). The test is whether the incumbrance is properly identified.

The clause of the contract relative to the amount of purchase money and the manner of payment reads: “Thirty seven thousand and no/100_______________dollars ($37,000), to be paid as follows: Purchaser to assume seller’s present loan, payable at Peachtree Federal Savings & Loan for approximately $28,800 at interest, payable monthly inch prin. & interest at $194.90. Balance to be paid in cash at closing. . . 2. Closing to be June 15, 1967.” This contract names the gross consideration, specifies the assumption of a certain incumbrance, and provides for payment of the balance in cash on closing of the transaction. Identifying the incumbrance, the contract names the payee or collecting agent, who would hold evidence of the incumbrance, and specifies the approximate amount of the principal, the amount of interest and the manner of payment of the balance on the loan. Note that the contract was not conditioned on procuring the loan, as in F & C Investment Co. v. Jones, 210 Ga. 635 (81 SE2d 828), but clearly refers to one already in existence. And the incumbrance identified is apparently one against the property which is the subject of the contract. Nickelson v. Owenby, 208 Ga. 352 (1) (66 SE2d 828). Reference to the incumbrance and mathematical computation would render absolutely certain the amount of cash payable, the number of monthly payments remaining and the dates on which payments would be due. We think it is obvious that this provision does not render the contract unenforceable for any reason argued.

This case comes under the principles followed in Muller v. Cooper, 165 Ga. 439, supra; Massell Realty Co. v. Hanbury, 165 Ga. 534, supra; Baker v. Lilienthal, 176 Ga. 802, supra; and Nickelson v. Owenby, 208 Ga. 352, supra. The cases of Trust Co. of Ga. v. Neal, 161 Ga. 965 (132 SE 385); Morgan v. Hemphill, 214 Ga. 555 (105 SE2d 580); Aycock Realty Co. v. Brown, [760]*76039 Ga. App. 649 (148 SE 291); Dunford, v. Townsend, 100 Ga. App. 550 (112 SE2d 14) and others cited by plaintiff and in the dissenting opinion are clearly distinguishable on their facts from this case. The judgment of the trial court is reversed with direction to the trial judge to enter judgment in accordance with the prayers in defendant’s counter claim.

Judgment reversed with direction.

Felton, C. J., Jordan, P. J., Hall, Eberhardt, Pannell, Deen and Whitman, JJ., concur. Quillian, J., dissents.

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Bell, Presiding Judge.

A contract for the sale of realty must expressly state the consideration or it must furnish a key by which the amount and terms of the purchase price can be ascertained; if the contract furnishes a key to the details of the consideration, that is sufficient. Muller v. Cooper, 165 Ga. 439, 442 (141 SE 300). If the terms of the written agreement show a gross consideration including the assumption of an incumbrance which is properly identified in'the agreement plus payment of [759]*759the balance of the purchase price in cash, the terms of payment can be ascertained by reference to the incumbrance and the contract is thus capable of enforcement. See Massell Realty Co. v. Hanbury, 165 Ga. 534, 544 (141 -SE 653); Baker v. Lilienthal, 176 Ga. 802 (169 SE 28); Sturdivant v. Walker, 202 Ga. 585 (5) (43 SE2d 527). The test is whether the incumbrance is properly identified.

The clause of the contract relative to the amount of purchase money and the manner of payment reads: “Thirty seven thousand and no/100_______________dollars ($37,000), to be paid as follows: Purchaser to assume seller’s present loan, payable at Peachtree Federal Savings & Loan for approximately $28,800 at interest, payable monthly inch prin. & interest at $194.90. Balance to be paid in cash at closing. . . 2. Closing to be June 15, 1967.” This contract names the gross consideration, specifies the assumption of a certain incumbrance, and provides for payment of the balance in cash on closing of the transaction. Identifying the incumbrance, the contract names the payee or collecting agent, who would hold evidence of the incumbrance, and specifies the approximate amount of the principal, the amount of interest and the manner of payment of the balance on the loan. Note that the contract was not conditioned on procuring the loan, as in F & C Investment Co. v. Jones, 210 Ga. 635 (81 SE2d 828), but clearly refers to one already in existence. And the incumbrance identified is apparently one against the property which is the subject of the contract. Nickelson v. Owenby, 208 Ga. 352 (1) (66 SE2d 828). Reference to the incumbrance and mathematical computation would render absolutely certain the amount of cash payable, the number of monthly payments remaining and the dates on which payments would be due. We think it is obvious that this provision does not render the contract unenforceable for any reason argued.

This case comes under the principles followed in Muller v. Cooper, 165 Ga. 439, supra; Massell Realty Co. v. Hanbury, 165 Ga. 534, supra; Baker v. Lilienthal, 176 Ga. 802, supra; and Nickelson v. Owenby, 208 Ga. 352, supra. The cases of Trust Co. of Ga. v. Neal, 161 Ga. 965 (132 SE 385); Morgan v. Hemphill, 214 Ga. 555 (105 SE2d 580); Aycock Realty Co. v. Brown, [760]*76039 Ga. App. 649 (148 SE 291); Dunford, v. Townsend, 100 Ga. App. 550 (112 SE2d 14) and others cited by plaintiff and in the dissenting opinion are clearly distinguishable on their facts from this case. The judgment of the trial court is reversed with direction to the trial judge to enter judgment in accordance with the prayers in defendant’s counter claim.

Judgment reversed with direction.

Felton, C. J., Jordan, P. J., Hall, Eberhardt, Pannell, Deen and Whitman, JJ., concur. Quillian, J., dissents.

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162 S.E.2d 16, 117 Ga. App. 758, 1968 Ga. App. LEXIS 1223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branan-schmitz-realty-inc-v-ballard-gactapp-1968.

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