Development Corp. of Georgia, Inc. v. West

Court of Appeals of Georgia

Development Corp. of Georgia, Inc. v. West

159 S.E.2d 94, 116 Ga. App. 768, 1967 Ga. App. LEXIS 956

CourtCourt of Appeals of Georgia

DecidedDecember 5, 1967

Docket43052

StatusPublished

Cited by5 cases

This text of 159 S.E.2d 94 (Development Corp. of Georgia, Inc. v. West) 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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Development Corp. of Georgia, Inc. v. West, 159 S.E.2d 94, 116 Ga. App. 768, 1967 Ga. App. LEXIS 956 (Ga. Ct. App. 1967).

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Opinions

Felton, Chief Judge.

The court erred in overruling the general demurrers to the petition. This is an action at law in the Civil Court of Fulton County for money had and received. The only question necessary for a decision is whether a cause of action at law existed at the time when the action was filed on June 15, 1965, against either defendant. In an action at law in a case such as this it must be alleged that a rescission of [770]*770the contract was an accomplished fact at the time of the filing of the action. Here it was necessary to allege that the defendants had consented to the rescission or done some act which the law would regard as consent or equivalent thereto. 95 ALE, 1000. This the petition failed to do. Where time is not made of the essence by the terms of a contract for the sale of land, in order for the failure to comply by one of the parties to be tantamount to a consent to a rescission by the other party, the party seeking to rescind must give the party failing to perform a notice to the effect that he will consider the contract rescinded unless performance is made within a fixed, reasonable time. Then, if there is not performance within the time prescribed, assuming it is reasonable, the offending party will be deemed to have consented to a rescission, and an action would lie for money had and received based on a rescission which had been completed. Ellis v. Bryant, 120 Ga. 890 (48 SE 352); Boswell v. United States, 123 F2d 213. The rationale of this principle is that the parties have not provided for a rescission by making time of the essence, and before one party can make it of the essence he must give the other notice of a desire to rescind and give him an opportunity to comply or else be deemed to have assented to the rescission. This case is distinguishable from Woodruff v. Camp, 101 Ga. App. 124 (112 SE2d 831) in that there the petition alleged that the defendant sold the land to a third person, which was an act clearly showing assent to a rescission. Assuming, but not deciding, that the petition in other respects is sufficient except as to the question above discussed, the petition failed to show that a cause of action existed against either defendant at the time of the filing of the action because of the failure to give the notice indicated in the foregoing.

The law above stated is the majority rule which Georgia unquestionably follows. The rule stated in Ellis v. Bryant, 120 Ga. 890, supra, has been consistently followed by the Supreme Court. Augusta Factory v. Mente & Co., 132 Ga. 503, 512 (3) (64 SE 553); Burkhalter v. Roach, 142 Ga. 344, 349 (3) (82 SE 1059); Mangum v. Jones, 205 Ga. 661, 667 (54 SE2d 603); Scheer v. Doss, 211 Ga. 7, 9 (83 SE2d 612); Lively v. Munday, 201 Ga. 409 (4) (40 SE2d 62, 173 ALR 1295). We find no [771]*771Georgia cases to the contrary where the question of an attempt to rescind is made by one of the parties.

The court erred in overruling the demurrers to the petition.

Judgment reversed.

Eberhardt, J., concurs. Hall, J., concurs specially.

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Felton, Chief Judge.

The court erred in overruling the general demurrers to the petition. This is an action at law in the Civil Court of Fulton County for money had and received. The only question necessary for a decision is whether a cause of action at law existed at the time when the action was filed on June 15, 1965, against either defendant. In an action at law in a case such as this it must be alleged that a rescission of [770]*770the contract was an accomplished fact at the time of the filing of the action. Here it was necessary to allege that the defendants had consented to the rescission or done some act which the law would regard as consent or equivalent thereto. 95 ALE, 1000. This the petition failed to do. Where time is not made of the essence by the terms of a contract for the sale of land, in order for the failure to comply by one of the parties to be tantamount to a consent to a rescission by the other party, the party seeking to rescind must give the party failing to perform a notice to the effect that he will consider the contract rescinded unless performance is made within a fixed, reasonable time. Then, if there is not performance within the time prescribed, assuming it is reasonable, the offending party will be deemed to have consented to a rescission, and an action would lie for money had and received based on a rescission which had been completed. Ellis v. Bryant, 120 Ga. 890 (48 SE 352); Boswell v. United States, 123 F2d 213. The rationale of this principle is that the parties have not provided for a rescission by making time of the essence, and before one party can make it of the essence he must give the other notice of a desire to rescind and give him an opportunity to comply or else be deemed to have assented to the rescission. This case is distinguishable from Woodruff v. Camp, 101 Ga. App. 124 (112 SE2d 831) in that there the petition alleged that the defendant sold the land to a third person, which was an act clearly showing assent to a rescission. Assuming, but not deciding, that the petition in other respects is sufficient except as to the question above discussed, the petition failed to show that a cause of action existed against either defendant at the time of the filing of the action because of the failure to give the notice indicated in the foregoing.

The law above stated is the majority rule which Georgia unquestionably follows. The rule stated in Ellis v. Bryant, 120 Ga. 890, supra, has been consistently followed by the Supreme Court. Augusta Factory v. Mente & Co., 132 Ga. 503, 512 (3) (64 SE 553); Burkhalter v. Roach, 142 Ga. 344, 349 (3) (82 SE 1059); Mangum v. Jones, 205 Ga. 661, 667 (54 SE2d 603); Scheer v. Doss, 211 Ga. 7, 9 (83 SE2d 612); Lively v. Munday, 201 Ga. 409 (4) (40 SE2d 62, 173 ALR 1295). We find no [771]*771Georgia cases to the contrary where the question of an attempt to rescind is made by one of the parties.

The court erred in overruling the demurrers to the petition.

Judgment reversed.

Eberhardt, J., concurs. Hall, J., concurs specially.

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159 S.E.2d 94, 116 Ga. App. 768, 1967 Ga. App. LEXIS 956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/development-corp-of-georgia-inc-v-west-gactapp-1967.

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