Kite v. Vickery , 153 Ga. 301 ( 1922 )

Gilbert, J.

The petition set out a cause of action, and the evidence was sufficient to prove the case substantially as laid. Therefore it necessarily follows that the court erred in granting a nonsuit. Vickery v. Swicord, 151 Ga. 145 (106 S. E. 92). The defendants, Yickery et al., contend that under the terms of the bond, if the purchase-money notes were not paid at the time specified, the vendor had the right to rescind the trade; citing McDaniel v. Gray, 69 Ga. 433, and other later cases to the same purport. They point out that the vendors were still occupying the land in question, never having physically removed therefrom; and therefore contend, that, time being of the essence of the contract, the vendors, ‘ upon failure of the purchaser to pay, might elect to pursue either one of the three remedies: first, to reduce the purchase-money notes to judgment, file a deed, and sell the land; or, second, bring ejectment; or, third, rescind the trade and hold possession of the land. The obstacle to the application of either of these remedies is readily seen by reference to the facts. The court having granted a nonsuit, the defendants, of course, introduced no evidence. The plaintiff proved the purchase of the rights of the original vendees in the bond for title previously to the maturity of the first purchase-money note, and on the day that such note matured, in the presence of one of the original vendees, tendered to the vendor the full amount due, which the vendor refused to accept. The refusal, under the evidence, was not placed upon any dispute as to the amount tendered, the manner of the tender, or other similar circumstances. It was placed upon the absolute refusal of the vendor to abide by the terms of the bond for title. It does not matter, therefore, whether the actual money in legal tender was handed to or shown to the vendor. Under such circumstances it is not necessary to consider whether time is of the essence of the contract as stated in the bond for title. The tender and its absolute rejection was equivalent to a compliance with the terms of the bond. The answer of the defendants admitted that Yickery had received $182 in cash at the time of the execution of the bond; the bond itself acknowledges receipt of $325, which was due to be paid on the day the bond was executed. There was no evidence contradicting these facts; nor was there any evidence that the vendor elected to rescind the contract because the entire $325 was not paid in cash, nor that there was any return of the amount received on the purchase-price. As' stated in the case of McDaniel v. Gray, supra, the vendors should restore to tlie purchaser tbe amount of the purchase-money paid, less such an amount as will prevent actual loss to them by reason of the non-performance of the contract on the part of the purchaser. The bond for title contains no provision authorizing the vendor to declare the amount received’ by him as part payment forfeited for a failure to make such payments. The general principle is that “where the parties themselves have not agreed and prescribed the right' of rescission and the circumstances under which it is to be exercised, restoration must be made/’ Applying these principles to the facts of the case, the court erred in granting a nonsuit; and the judgment must be reversed on the main bill of exceptions. Judgment is affirmed on the cross bill.

All the Justices concur.