McCafferty v. Herring

278 S.E.2d 436, 157 Ga. App. 699, 1981 Ga. App. LEXIS 1977

• Court: Court of Appeals of Georgia
• Decided: February 10, 1981
• Docket: 60485
• Status: Published

Opinions

Shulman, Presiding Judge.

Plaintiff brought suit to recover under the terms of a note executed pursuant to a divorce settlement agreement. The relevant provision of the settlement agreement required defendant to execute a “non-interest bearing note payable to the wife [plaintiff] in the amount of Twenty-Two Thousand ($22,000.00) Dollars. Said note shall be made due and payable upon the sale or transfer of the residence of the Husband or upon the death of the Husband [defendant].” The promissory note executed by defendant pursuant to the separation agreement omitted the language requiring payment upon the death of the defendant.

Although* defendant was still in life and had not sold or otherwise transferred the property at the time plaintiff brought suit, it was plaintiffs contention that payment was nonetheless due on the note, since a reasonable time (one year) had expired for the sale or transfer of the property.

Defendant, on the other hand, argued that the plain and clear terms of the agreement and note controlled the time of his payment and that payment on the note was not therefore due until the occurrence of one of the events so specified (i.e., defendant’s sale or transfer of the property, or at his death).

We agree with defendant-appellee’s contentions and, accordingly, affirm the judgment of the trial court.

The trial court properly construed together both the separation agreement and the promissory note in making its determination that the omission of some of the language of the separation agreement was inadvertent; and that, therefore, it was intended by and within the contemplation of both parties that the terms of the promissory note conform to the separation agreement. See in this regard Harwood v. Great Am. Mgt. &c., Inc., 156 Ga. App. 22 (274 SE2d 5). That being so, the terms of the agreement and note provided, as stated above, for payment to be made upon defendant’s death or at his prior sale or transfer of the property.

Although we agree with appellant that the agreement and note in question create an absolute liability on the part of the defendant to pay plaintiff the sum specified in the note and agreement, we cannot agree thatL. Gregg Ivey, Inc. v. Land, 148 Ga. App. 667 (252 SE2d 88), thus compels the trial court’s implication of a reasonable time for performance of the note and agreement. Contrary to appellant’s contentions, L. Gregg Ivey, Inc. does not stand for the proposition that when a promise to pay is unconditional it is enforceable within a reasonable time, regardless of time limitations otherwise set forth in the agreement. Rather, citing MacLeod v. Belvedale, Inc., 115 Ga. App. 444, 446 (154 SE2d 756), L. Gregg Ivey, Inc. holds that when “ ‘payment of an existing liability is postponed until the happening of an event which does not happen, payment must be made within a reasonable time.’ ” (Emphasis supplied.) Id., Division 3.

In the instant case, payment has been postponed until the happening of an event, but it is inevitable that one of the events specified in the note and agreement will occur (e.g., it is inevitable that appellee will die). Thus, we are not presented here, as was contemplated in L. Gregg Ivey, Inc., with the situation where an event, the occurrence of which is to trigger a party’s contractual performance, does not, or cannot, occur. Therefore, a contention that an affirmance of the trial court’s refusal to imply a reasonable time for the sale or transfer of the property would deprive appellant of the money owed her pursuant to the parties’ note and agreement is incorrect. It will obviously delay her receipt of the money, but such a delay was clearly contemplated by the parties. See Coffee System of Atlanta v. Fox, 227 Ga. 602 (182 SE2d 109), wherein the Supreme Court refused to extend the time limitations for performance of a contract beyond the one year specified in the parties’ agreement, holding that “[c]ourts do not make contracts for the parties. The contingency... could have been provided for in the agreement, but was not.”

Decided February 10, 1981 . Rehearing denied March 2, 1981 William Boyd Lyons, for appellant. M. T. Simmons, for appellee.

Although we recognize that affirming the lower court’s judgment might thwart a reasonable purpose of the divorce settlement agreement — that the plaintiff wife during her life should receive a portion of the equity in the former residence of the parties (inasmuch as plaintiff might not be in life at the time such property is sold or transferred by defendant, or otherwise at defendant’s death) — such was a contingency which could have been provided for in the contract. See also 17A C JS 783, Contracts, § 503 (1) b, stating that the rule of reasonable time does not apply to a contract definitely fixing the time.

Since the note and agreement specifically set forth the time for payment of the note upon the occurrence of certain specified events, one of which will necessarily occur at some future date, we find no error in the trial court’s denial of plaintiffs demand for immediate payment on the note.

Judgment affirmed. Deen, P. J, Banke, Birdsong, Carley and Pope, JJ., concur.

Quillian, C. J., McMurray, P. J., and Sognier, J., dissent.