Sperry v. Planters Rice Mill Co.

84 S.E. 492, 16 Ga. App. 35, 1915 Ga. App. LEXIS 493

• Court: Court of Appeals of Georgia
• Decided: February 18, 1915
• Docket: 5633
• Status: Published

Opinion

Wade, J.

There was no error in sustaining the demurrer, for the reason that the petition failed to show that the purported purchaser ever offered to buy and pay for the real estate which had been the subject-matter of negotiation. Judgment affirmed.

Broyles, J., not presiding.

Exhibit A was as follows: “Savannah, Ga., Feb. 8, 1913. I have this day negotiated an option between the Planters Eice Mill Company, the seller, and M. L. Sperry, the buyer, to purchase the property of the seller, known as front lot # 3 Wharf Lots in Yamacraw, North of Eiver Street, Savannah, Ga., . . the seller agreeing to give an option to the purchaser for ninety days from this date to purchase said property for the sum of $65,000; the purchaser to pay for said option the sum of $1,000; the $1,000 to become the property of the seller if the option is not taken up, but if said option is taken up, the $1,000 is to be on account of the purchase-price. Titles are to be warranted and fee simple. Taxes, water-rents, and rents are to be prorated between the parties upon the passing of the title. I acknowledge to have received the sum of $1,000 on account, to bind the bargain. The seller is to pay my commission of 3y2 per cent. Final settlement and payment of the purchase-money is to be made through me. This option executed in triplicate. [Signed] G. A. Mercer, Broker. Accepted: The Planters Eice Mill Co., by Geo. W. Owens, Pres., M. L. Sperry.”

The demurrer was on the grounds, among others, that the petition does not set forth a cause of action, and that it does not state that the plaintiff paid or offered to pay the purchase-price specified in the option.

Osborne & Lawrence, Edmund H. Abrahams, for plaintiff,

cited : Black v. Maddox, 104 Ga. 157; 29 Am. & Eng. Enc. L. (2d ed.) 601, 618, 666; Judson v. Wass, 11 John. 525 (6 Am. D. 392); Sanders v. Lansing, 70 Cal. 429 (11 Pac. 702); Smith v. Lamb, 26 Ill. 396 (79 Am. Dee. 381-3); Demesmey v. Gravelin, 56 Ill. 93; Wheeler v. Mather, 56 Ill. 241; Baston v. Clifford, 68 Ill. 70; 48 Century Dig. 1375-8-9; 2 Warvelle on Vendors (ed. 1890), 948; Burks v. Davies, 85 Cal. 110 (20 Am. St. B. 213); Maupin on Marketable Title to Real Estate (2d ed.), § 87, pp. 202-5; Read v. Walker, 18 Ala. 323; Wright v. Dickinson, 67 Mich. 580 (11 Am. St. B. 602); Runkle v. Johnson, 30 Ill. 328 (83 Am. Dec. 191); Stow v. Stevens, 7 Yt. 27 (29 Am. Dec. 139); Goodesson v. Nunn, 4 T. R. 761; Tinney v. Ashley, 16 Pick. 546 (26 Am. Dec. 620); Morange v. Morris, 3 Abb. Dec. 314, aff. 34 Barb. 311; Cobb v. Hall, 33 Vt. 233; Richards v. Allen, 17 Maine, 296; Bennett v. Phelps, 12 Minn. 326; Smith v. Rogers, 42 Hun, 110; 48 Am. Dig. (Cent. ed.) 1411; Newcomb v. Brackett, 16 Mass. 161; Turner v. Parry, 27 Ind. 163; Thurston v. Franklin College, 16 Penn. St. 154; Cooley v. Moss, 123 Ga. 707 (1); Mobley v. Lott, 127 Ga. 572; Smith v. Georgia Loan &c. Co., 113 Ga. 975; Arnold v. Empire Ins. Co., 3 Ga. App. 686 (5); McDonald v. Beall, 55 Ga. 289 (10); Sizemore V. Pinkston, 51 Ga. 398; McManus v. Cook, 59 Ga. 488; O’Neal v. Miller, 9 Ga. App. 180.

George W. Owens, T. P. Bavenel, E. S. Elliott, for defendant,

cited: Jarman v. Westbrook, 134 Ga. 19; Larned v. Wentworth, 114 Ga. 208; Gray v. Lynn, 139 Ga. 294; Robinson v. Weller, 81 Ga. 704; Arnett v. Puller, 134 Ga. 609; Van Winkle v. Harris, 137 Ga. 43; Smith v. Tatum, 140 Ga. 719-20; 1 Sugden on Yendors (8th Am. ed.), 366 (marg. p. 241); Watkins v. Hendricks, 137 Ga. 330; Booth v. Atlanta Clearing House Assoc., 132 Ga. 100 (4), 109; Heard v. Coggins, 134 Ga. 52; Harden v. Lang, 110 Ga. 392; Black v. Walker, 98 Ga. 31; Sasser v. Pierce, 6 Ga. App. 321; Emery v. Atlanta Exchange, 88 Ga. 327; White Y. Stewart, 131 Ga. 460; Civil Code, § 4193.