Coleman v. Hunsucker

104 S.E.2d 910, 214 Ga. 351, 1958 Ga. LEXIS 421

Opinion

Candler, Justice.

The exception here is to a judgment overruling a general demurrer to a petition which sought specific performance of a contract for the purchase and sale of realty. The petition alleges in substance the following facts: On September 6, 1956, the defendant agreed in writing to sell the plaintiff a described tract of land for $5,500. Of that amount $2,000 was paid in cash, and the balance was to be paid in ten years by monthly instalments of $38.86 each. The plaintiff is “now ready, able and willing to tender” the balance due on the contract upon the defendant executing to him a warranty deed in' accordance with the provisions of said sales contract. Held:

Argued July 15, 1958 Decided September 5, 1958. James M. Roberts, for plaintiff in error. Glyndon C. Pruitt, Woodrow Tucker, contra.

Since the petition affirmatively shows that the plaintiff has not paid the defendant the full amount of the agreed purchase-price for the realty involved nor made to him an unconditional tender of such amount, he is in no position to ask a court of equity to decree specific performance of the sale contract. Hence, the petition failed to state a cause of action for the relief sought, and the court erred in overruling a general demurrer to it.

Judgment reversed.

All the Justices concur.