Muller v. Cooper

141 S.E. 300, 165 Ga. 439, 1928 Ga. LEXIS 3

• Court: Supreme Court of Georgia
• Decided: January 10, 1928
• Docket: No. 5925
• Status: Published

Opinions

Per Curi-am.

In view of the amendment to the bill of exceptions, making certain parties defendants in error, the motion to dismiss the writ of error is denied.

To constitute a valid sale of real estate which a court of equity will require to be specifically performed, the following are the essentials to the contract of such sale: (1) the memorandum of contract must specify the parties, that is the seller and the buyer; (2) the memorandum must sufficiently describe the subject-matter of the contract; and (3) the memorandum must name the consideration. The consideration need not be expressly stated if the memorandum of contract furnishes a key by which the amount of the purchase-price can be ascertained. If the consideration is not all to be paid in cash, then the times and amounts of deferred payments must be specified. When the contract expressly states the amount of purchase-money or furnishes a key by which it can be ascertained, then the contract is sufficient. The principles here stated are in accord with decisions of the courts of last resort in many o£ the States of this country, as will appear from examination and analysis of the following cases: Wagner v. Eustathiw, 169 Cal. 663 (147 Pac. 561); Ehrenstrom v. Phillips, 9 Del. Ch. 74 (77 Atl. 80); Inglis v. Fohey, 136 Wis. 28 (116 N. W. 857) ; Nelson v. Husted, 182 Fed. 921; Kipp v. Laun, 146 Wis. 591 (131 N. W. 418); Kerr v. Moore, 6 Cal. App. 305 (92 Pac. 107); Meyer v. Jenkins, 90 Ark. 209 (96 S. W. 991); Dingman v. Hilberry, 159 Wis. 170 (149 N. W. 761); Caplan v. Buckner, 123 Md. 590 (91 Atl. 481). Other cases might be added to this list, but to do so would be a duplication of the citations made in the cases listed.

The court erred in sustaining the general demurrer to the petition. The contract, which is shown in full in the statement of facts, is certain as to the parties to the contract, the gross consideration, and the description of the property which was the subject of the sale. It is insisted that the provision of the contract as to the payment of the purchase-price was “too vague and indefinite to be enforceable in law.” The contract names a definite sum, to wit $775,000, as consideration. It further provides how that sum is to be paid, and it is to the latter provision that the criticism is applied. The intention of the parties may be shown, and the manner of payment made certain, by resort to parol evidence.

The decision in Trust Co. of Ga. v. Neal, 161 Ga. 965 (132 S. E. 385), does not require a ruling contrary to the above. It may be said that the decision cited reached the extreme limit to which we are willing to agree. The authorities cited to support the ruling there made are not contrary to the rulings in the preceding paragraphs. The cases of Tippins v. Phillips, 123 Ga. 415 (51 S. E. 410), and Young v. Flournoy, 139 Ga. 634 (77 S. E. 807), dealt exclusively with the sufficiency of the description of the land mentioned in the contracts. None of those cases, nor Crawford v. Williford, 145 Ga. 550 (89 S. E. 488), was a full-bench decision; and consequently they are not binding authorities.

Judgment reversed.

All the Justices concur, except Atkinson and Hill, JJ., who dissent save as to the ruling of practice in the first paragraph,