Lively v. Munday , 201 Ga. 409 ( 1946 )

1. In a suit for specific performance of an alleged written agreement to sell land, where it appeared from the allegations that an exhibit of the contract attached to the petition did not contain all of the provisions of the agreement, an amendment to the petition which merely supplied omitted provisions was not subject to objection or demurrer on the ground that it "sets up a new and distinct cause of action, in that an entirely different contract is set up."

2. The following description in the contract of sale, "all that tract of land in land lot No. 194 and 205 of the . . District of DeKalb County, Georgia, being . . acres more or less, located north of Briarcliff Road and known as the W. W. Lively Estate," was prima facie sufficient to furnish a key whereby the land could be identified by the aid of extrinsic evidence, and the allegations of the petition considered as a whole were sufficient as against a general demurrer to render such proof admissible.

3. As a general rule, a vendee of land, before bringing his action for specific performance, should tender to the vendor the amount agreed to be paid by him before the execution of the conveyance; but tender by the vendee before suit is excused if the vendor by declaration or conduct proclaims that if a tender should be made its acceptance would be refused. Yet, even where such tender before suit is excused, the plaintiff's should still offer in their pleadings to pay the amount which is due or which may be found due by decree of the court.

(a) In the instant case, the plaintiffs in their petition offered to pay into court only a specific sum, and this sum was insufficient under the terms of the contract, for the reason that the plaintiffs had made unauthorized deductions for the expense of a survey and for revenue stamps, and also because they did not offer to pay interest.

4. Time is not generally of the essence of a contract, and it was not by express stipulation or reasonable construction made such in this instance. Accordingly, under the facts of this case, a mere delay of five or six months in making tender was not fatal, the plaintiffs having been admitted into possession on or about the date of the alleged agreement.

5. The petition was not subject to general demurrer on the ground that the description of the lands as copied from a map or survey enlarged the key language contained in the contract, no conflict appearing.

6. Although the contract was signed by the defendant and another as sellers, the petition alleged that the defendant's co-vendor had accepted payment and executed a deed conveying his interest in the land, and sought a decree only as to the defendant's interest. In these circumstances, the petition was not subject to special demurrer for failure to make the defendant's co-vendor a party. Nor was there any merit in other grounds of special demurrer, unless in certain grounds which need not be passed upon, in view of the rulings in the third note, supra, and the corresponding division of the opinion, relating to grounds of general demurrer.

(a) For the reasons stated in that note and division, the court erred in overruling the general demurrer.

No. 15476. SEPTEMBER 6, 1946. REHEARING DENIED OCTOBER 11, 1946. On August 3, 1945, W. W. Lively and L. E. Munday filed an equitable petition against C. M. Lively, praying that he be required to specifically perform an alleged contract for the sale of land "by conveying his interest in said lands to petitioners," that, upon failure to convey, "the court decree and vest title in petitioners," and for general relief. The petition was amended three times. General and special demurrers were overruled, and the defendant excepted.

He demurred to the first amendment, on the ground that it "sets up a new and distinct cause of action, in that an entirely different contract is set up," the contents of this demurrer being more fully set forth later in this opinion. No objection was made to the allowance of the other two amendments, one being in response to the judge's rulings on demurrer.

The petition as finally amended contained substantially the following allegations:

1. C. M. Lively is a resident of DeKalb County, Georgia.

2. C. M. Lively and W. R. Lively jointly owned each a half interest in the real estate described in paragraph 3 hereof.

3. On January 15, 1945, the defendant, named above, sold to the plaintiffs the following tract of land and the improvements thereon: Situated in land lots 194 and 205 of the 18th District of DeKalb County, Georgia, known as the "W. W. Lively Estate" property. Beginning at the northwest corner of land lot 205, running thence south along the land lot line dividing land lot 205 from land lot 204, thirty-two hundred seven (3207) feet to a stone on the land lot line; thence east nine hundred seventy-one (971) feet to a stone and pipe; thence southeast 27 degrees 40 minutes ten hundred seventy-five (1075) feet to an iron pin on Briarcliff Road; thence northeast four hundred twenty-six (426) feet along the northern side of said road to a public road leading northwesterly from Briarcliff Road (and at the property line of M. C. Lively); thence northwest four hundred five (405) feet to an iron pipe; thence northeast one hundred ten (110) feet; thence following the north line of M. C. Lively property four hundred ninety-five (495) feet easterly to a pipe; thence northwest ten hundred thirty-two (1032) feet to an iron pin, at the northwest corner of the W. W. Lively property; thence east ten hundred forty-five (1045) feet to a pipe on the east land lot line of land lot 205; thence north along said land lot line twenty-seven hundred forty (2740) feet to the northeast corner of the land lot; thence west along the north land lot line twenty-nine hundred five (2905) feet to the point of beginning. All of which is more fully shown by survey of Gordon Nalley, Engr., a copy of which is attached hereto and marked Exhibit "A."

4. As a consideration therefor, the plaintiffs agreed to pay the defendant and W. R. Lively $50 per acre, and further agreed to pay the taxes for 1945.

5. This paragraph (also 5 of the original petition) was as follows: "Petitioners attach hereto as Exhibit ``B' a substantial copy of the material portion of a written contract signed by the defendant herein, and offer to comply therewith." A writing, marked Exhibit "B," was attached. In the first amendment, filed by the plaintiffs on November 9, 1945, it was stated: "Come now plaintiffs and amend their petition heretofore filed, and in particular paragraph 5, Exhibit ``B', by adding to Exhibit ``B,' after the words ``terms cash,' and before the words ``special stipulations,' the following." The Exhibit "B" thus referred to, after such amendment, was as follows, the part thereof added by the amendment being shown in brackets:

"January 15, 1945. The undersigned buyer agrees to buy, and the undersigned seller agrees to sell, through Ben S. Forkner Realty Co., agents for W. W. Lively Estates, all that tract of land in land lot No. 194 and 205 of the . . District of DeKalb County, Georgia, being . . acres more or less, located north of Briarcliff Road and known as the W. W. Lively Estate, including all lighting fixtures attached thereto, and all heating, water heating, and plumbing equipment therein. The purchase-price of said property shall be" $50 per acre, "to be paid as follows: Terms cash. [Buyer has paid to the undersigned, Ben S. Forkner Realty Company, agent, receipt whereof is hereby acknowledged by agent, $ . . as earnest money, to be applied as part payment of the purchase-price of said property at the consummation of this sale; and if sale, due to buyer's default, is not consummated, then one-half of said earnest money shall be applied toward commissions owing agent hereunder, and agent shall pay the balance to seller to be applied toward seller's damages caused by buyer's default. In the event the sale is not consummated for reasons other than default of buyer, said earnest money is to be refunded to buyer. Seller agrees to furnish good and marketable title to said property and buyer shall have a reasonable time in which to examine the same. If buyer finds any legal defects to title, seller shall be furnished with a written statement thereof and given a reasonable time in which to correct the same. It is agreed that such papers that may be legally necessary to carry out the terms of this contract shall be executed and delivered by the parties at interest as soon as the validity of the title to said property has been established. Said property is sold subject to: (1) All valid restrictions of record; (2) zoning ordinances affecting the same; (3) existing leases. In negotiating this contract agent has rendered a valuable service and seller agrees to pay agent commission in accordance with the schedule on the reverse side hereof. If sale is not consummated due to default of buyer, seller shall not be obligated to pay commissions, but buyer shall pay said commissions. If this transaction involves an exchange of real estate, commission shall be paid in respect to the property conveyed by each party to the other, and notice of dual agency is hereby given and accepted by all parties thereto. Commissions on an exchange shall be calculated according to said schedule on the amount at which the property is taken in exchange according to the contracts between the parties; and if no amount is stipulated, then according to reasonable value thereof. Agent may enforce this contract to the extent of his commissions due hereunder against any party liable therefor under the terms hereof. This contract constitutes the sole and entire agreement between parties, and no modification hereof shall be binding unless attached hereto and signed by each; and no representations, promises, or inducements shall be binding upon either party or agent except as herein stated. The following special stipulations shall, if conflicting with the printed matter, control:] Special stipulations. Purchaser agrees to pay 1945 taxes. The above price is to be a net price to the seller. This instrument shall be regarded as an offer by the buyer or seller who first signs to the other, and is open for acceptance by the other until __ o'clock _.M. on the _____ day of ______ 19__, by which time written acceptance of such offer must have been actually received by agent, who shall promptly notify other party of such acceptance.

/s/ W. W. Lively L. E. Munday (Buyer)

"The above proposition is hereby accepted this _____ day of ______ 1945.

/s/ W. R. Lively /s/ C. M. Lively (Seller) By: Ben S. Forkner Agent."

Said contract was signed on January 15, 1945, by W. R. Lively and C. M. Lively, the sellers, and was then on said date presented to and signed by the plaintiffs, W. W. Lively and L. E. Munday. The signing by plaintiffs took place in the presence of the defendant's agent, Ben S. Forkner.

6. On or immediately after January 15, 1946, the plaintiffs were placed in possession of the above-described real estate by the defendant and W. R. Lively, and paid to the defendant $50 as part of the purchase-price.

7. The plaintiffs entered upon said premises and removed stumps from the location of the present roadway and from the roadway as now laid out on said land, at an expense, the fair market value of which labor amounted to $10; and at the same time, during the last part of May, 1945, plowed 25 acres and planted same in corn and beans, for the permanent improvement of the fertility of the soil and also for the purpose of raising said crop, at an expense, the fair market value of which is $95 for plowing and $50 for planting. Later in 1945, the roads were scraped, and the fair market value of said scraping amounted to $25, which improvements were seen by the defendant, C. M. Lively, at the time they were made.

8. The defendant agreed at the time the contract was executed and also immediately subsequent thereto, upon delivery of possession of the plaintiffs, that a survey of the property would be made in order to determine the exact location of the boundaries. "Petitioner will show that the plat attached as an exhibit was made a part of the transaction for the purpose of supplying a location for the boundaries and a more complete description of the property being sold. This survey and plat constitutes a part of the written agreement."

9. The plaintiffs will show that the description set up in the contract for sale on January 15, 1945, refers to the property as "known as the W. W. Lively Estate," the property described therein being the only land owned by the defendant and W. R. Lively and known as "The W. W. Lively Estate," title to which is, and was on January 15, 1945, in the defendant, to one-half on north side of Briarcliff Road, DeKalb County, Georgia. The property sold by the defendant had a market value at the time of its sale to the plaintiffs of from $45 to $50 per acre, and the contract was therefore fair and the price adequate.

10. The description contained in the contract for sale is definite; and the boundary and description can, by the aid of oral testimony and said plat, be made absolutely certain, and, as alleged, have been made definite and certain by said plat.

11. Due to partial payment, possession, and valuable improvements made, and said plat and agreement, the plaintiffs are entitled, in equity, to have said contract enforced. The sum of $50 was paid to the defendant and W. R. Lively on or about January 15, 1945, by handing the same to Ben S. Forkner, agent for said named parties. The valuable improvements were made by the plaintiffs and have been set forth in paragraph 7.

12. The existence of said contract was admitted during the last of the month of May, 1945, the exact date being unknown, by the defendant, C. M. Lively, to W. R. Lively in a conversation wherein C. M. Lively was asked by W. R. Lively if it were all right to cultivate the land purchased, and C. M. Lively stated that it was all right to cultivate the land; and, a second time, in a personal conversation with W. W. Lively on the property during May or June, 1945, when C. M. Lively saw the plaintiff, W. W. Lively, and stated to W. W. Lively that he, C. M. Lively, was glad the plaintiffs had bought the land.

13. Due to the fact that the defendant and W. R. Lively desired to have and pay for a survey of the property in order to determine the exact acreage, and the difficulty in obtaining a surveyor and a correct survey, and through no fault of the plaintiffs, the closing of the transaction was necessarily delayed for several months. W. R. Lively and the defendant, C. M. Lively, called Gordon Nalley, a surveyor, in January, 1915, after the agreement of 1945 was signed. Said Nalley promised to make the survey on a certain date, unknown to the plaintiffs, but failed to do so. He did, however, come some time in the early part of February, 1945, on a Saturday, and stated that the job was too big for one day and that he would have to return later. When he failed to return, said parties got in touch with Maury Mable, surveyor, who, due to rainy conditions of weather, could not make the survey for approximately two or three weeks. Said Mable made a survey and plat, which was later found to be erroneous. Thereupon the defendant agreed to have "the plat remade and obtain the services of Gordon Nalley to remake the plat. In finally procuring the services of Gordon Nalley plaintiffs assisted by calling him." Exhibit "A" to the original petition is the result of these efforts.

14. On or about July 11, 1945, the plaintiffs tendered to the defendant and W. R. Lively, in DeKalb County, at the home of the defendant, C. M. Lively, the full purchase-price of said property, $50 per acre, as per plat, less the expense of the survey and plat, which the defendant agreed to pay. The sellers were tendered the total sum of $11,090 less the cost of survey, $231, revenue stamps, $12.65, or $10,846.35, less an additional sum of $50 paid as earnest money. There was tendered to C. M. Lively, in lawful cash currency of the United States, the sum of $5,398.18. This tender was refused by the defendant, C. M. Lively.

15. On or about July 11, 1945, the defendant, C. M. Lively, refused the tender which was made by the plaintiffs as above alleged, and on said date the defendant informed the plaintiffs that he would not carry out said contract or accept tender.

16. The plaintiffs stand ready to pay the purchase-price for said property, and do continuously tender the purchase-price to the defendant, namely, the sum of $5,398.18, and stand ready to pay said money into court.

17. The plaintiffs attach hereto as Exhibit "C" copy of an original deed, signed and delivered to them by W. R. Lively for the purpose of consummating the sale of the property described.

18. The said W. R. Lively is ready and willing to accept his half of the proceeds of the sale, which has been paid to him. The sum of $5,398.18 in cash has been paid to and accepted by W. R. Lively, who has executed a deed to the plaintiffs.

19. The property described in this petition was owned one-half by the defendant and one-half by W. R. Lively.

On November 10, 1945, after the plaintiff's amendment of November 9 (the first amendment, see paragraph 5, supra) had been allowed subject to demurrer, the defendant demurred to said amendment on the ground that it "sets up a new and distinct cause of action, in that an entirely different contract is set up," because said amendment added five material provisions (specified in the demurrer) to which no reference had been made in the contract as presented by the original petition.

The grounds of general and special demurrer to the petition as finally amended are sufficiently indicated in the opinion of the court which follows this statement, and need not be set forth in detail herein. 1. W. W. Lively and L. E. Munday filed suit against C. M. Lively, seeking specific performance. The petition alleged in effect that on January 15, 1945, W. R. Lively and C. M. Lively had agreed in writing to sell to the plaintiffs a tract of land in DeKalb County then owned by the alleged sellers as tenants in common, and that W. R. Lively had accepted payment and executed a deed conveying his one-half interest in the property, but that C. M. Lively had refused to carry out the agreement with respect to his one-half interest; and C. M. Lively alone was sued. The petition was several times amended, and although various general and special demurrers were urged to the original petition and to the petition as amended, the defendant did not object to the allowance of any of the amendments except the first one; and the first question for determination is whether the court erred in allowing that amendment.

The objection was made by demurrer, and presented the contention that the amendment "sets up a new and distinct cause of action, in that an entirely different contract is set up;" reasons for this conclusion being stated in the demurrer.

In the original petition it was alleged "Petitioners attach hereto as Exhibit ``B' a substantial copy of the material portions of a written contract signed by the defendants herein." This averment implied that the contract contained provisions that were not embodied in the exhibit, but that the plaintiffs did not consider such omitted provisions as being material. In response to a demurrer, that the pleading did not purport to set forth the whole agreement, they offered to amend by inserting additional stipulations in Exhibit B; and, with these stipulations added, the exhibit purported to express an entire agreement. Since it thus appeared that the petition and the amendment referred to the same alleged contract, and that the amendment merely supplied stipulations which had been omitted, the amendment was not subject to objection or demurrer on the ground stated. Ross v.Jordan, 62 Ga. 298 (2); Quillian v. Johnson, 122 Ga. 49 (4) (49 S.E. 801); Cox v. Georgia R. Bkg. Co., 139 Ga. App. 532,534 (77 S.E. 574); Klimax Overall Co. v. Converse Co., 39 Ga. App. 742 (2) (148 S.E. 349). The case differs on its facts from Lamar v. Lamar, Taylor Riley Drug Co.,118 Ga. 850 (45 S.E. 671), Southern Ry. Co. v. Parramore,119 Ga. 690 (46 S.E. 822), and Cooper v. Oglethorpe Savings Trust Co., 147 Ga. 570 (4) (94 S.E. 1006), cited for the defendant on this point.

2. In this division, and in those following through division 5, we will consider the grounds of general demurrer. The defendant demurred generally on the ground that the agreement, as shown by the petition as amended, is void and unenforceable for the reason that the description of the land is too vague and indefinite.

There is no merit in this contention. The descriptive language was as follows: "All that tract of land in land lot No. 194 and 205 of the . . District of DeKalb County, Georgia, being . . acres more or less located north of Briarcliff Road and known as the W. W. Lively Estate." This description was prima facie sufficient to furnish a key whereby the land could be identified by the aid of extrinsic evidence, and the allegations of the petition considered as a whole were sufficient, as against a general demurrer, to render such proof admissible. Hancock v.King, 133 Ga. 734 (1) (66 S.E. 949); Clark v. Cagle,141 Ga. 703 (2) (82 S.E. 21, L.R.A. 1915A, 317); King v.Brice, 145 Ga. 65 (88 S.E. 960); Lewis v. Trimble,151 Ga. 97 (4) (106 S.E. 101); Whelchel v. Waters, 152 Ga. 614 (2) (111 S.E. 25).

3. It is contended that the petition shows upon its face that the plaintiffs have never tendered the full amount of the agreed purchase-money, and that they have not done or offered to do equity.

The petition was not subject to general demurrer because of any defect in the tender alleged to have been made to the defendant before the suit was filed. This is true for the reason it was alleged in paragraph 15 that, on the date of such tender, the defendant informed the plaintiffs that he would not carry out the contract or accept tender. "As a general rule, a vendee of land, before bringing his action for specific performance, should tender to the vendor the amount agreed to be paid by him before the execution of the conveyance; but tender by the vendee before suit is excused if the vendor by declaration or conduct proclaims that if a tender should be made its acceptance would be refused."Miller v. Watson, 139 Ga. 29 (3) (76 S.E. 585); Black v.Milner Hotels, 194 Ga. 828, 832 (4) (22 S.E.2d 780);Irvin v. Locke, 200 Ga. 675 (38 S.E.2d 289).

However, even though the plaintiffs may have been excused from tendering the correct amount, or any amount, to the defendant before suit, this did not relieve them from offering in their pleadings to pay the amount which was due or the amount which might be found due by decree of the court. Code, § 37-104;Miller v. Watson, supra; Kerr v. Hammond, 97 Ga. 567 (1) (25 S.E. 337); Whelchel v. Waters, supra (4); Renfroe v. Butts, 192 Ga. 720 (3) (16 S.E.2d 551). The plaintiffs did allege that they stand ready to pay the purchase-price for said property and do continuously tender the purchase-price to the defendant, namely, the sum of $5,398.18, and stand ready to pay the said money into court. Was this the correct amount under the terms of the contract?

According to the allegations, the total amount of the purchase-price at $50 per acre was $11,090, from which sum the plaintiffs deducted $50, which was alleged to have been paid on or about the date of the agreement; also $231 as expense of the survey, and $12.65 for revenue stamps. This left a balance of $10,796.35, one-half of which, $5,398.18, the plaintiffs alleged they were willing to pay into court as the amount due the defendant for his one-half interest.

The defendant contends that this amount was insufficient for three reasons: (1) The cost of the survey was not a liability of the defendant under the terms of the contract. (2) The plaintiffs were not authorized to make the deduction for revenue stamps. (3) Since the plaintiffs entered into possession of the property on or about the date of the contract, January 15, 1945, they were liable for interest on the purchase-price from the date of such entry. We will deal with these questions in the order stated.

First. The contract stipulated the purchase-price as being $50 per acre, but did not state how many acres were contained in the tract that was being sold, "known as the W. W. Lively estate." Nor did the agreement contain any provision for a survey for the purpose of ascertaining such acreage. It did contain, however, the following express stipulations: "This contract constitutes the sole and entire agreement between the parties, and no modification hereof shall be binding unless attached hereto and signed by each." "The above price is to be a net price to the seller." Under these provisions, the cost of the survey should fall upon the purchaser and not the seller; and this being true, the plaintiffs could not properly deduct the cost of such survey. Nor were there other allegations to alter this conclusion.

The plaintiffs alleged that the defendant agreed at the time the contract was executed, and also immediately on delivery of possession to the plaintiffs, that a survey would be made in order to determine the exact location of the boundaries; also, that the attached exhibit (copy of the map and survey) was a part of the transaction for the purpose of supplying the boundaries and a more complete description of the property being sold, and that this survey and plat constituted a part of the written agreement. There were additional allegations to the effect that the defendant and W. R. Lively desired to have and pay for a survey in order to determine the exact acreage, and that after two unsuccessful efforts to have a correct survey made, the defendant agreed to have "the plat remade and obtain the services of Gordon Nalley to remake the plat. In finally procuring the services of Gordon Nalley plaintiffs assisted by calling him." It was also alleged that the defendant agreed to pay the expense of the survey and plat.

The question is not whether the defendant could for his own information and benefit have procured the services of a surveyor at his own expense, or even whether, without further consideration, he could have bound himself by an independent subsequent agreement to reimburse the plaintiffs if they would have a survey made. The petition, properly construed, shows upon its face that the alleged agreement with respect to a survey was a verbal one, and also that such agreement is claimed and relied on as part and parcel of the contract of sale. Accordingly, regardless of the statute of frauds, the agreement as pleaded, would violate the parol-evidence rule; and especially is this true, in view of the written stipulations, "This contract constitutes the sole and entire agreement between the parties," and "The above price is to be a net price to the seller." Code, § 38-501; Armistead v.Weaver, 140 Ga. 740 (1) (79 S.E. 783); Curtis v. Pierce,157 Ga. 717 (122 S.E. 208); Gibson v. First National Bankof Marietta, 158 Ga. 350 (2) (123 S.E. 606).

Moreover, even if the petition could be construed as disclosing a valid agreement on the part of the defendant to have a survey made and to bear such expense, it discloses nothing more than a promise or agreement to procure the services of a surveyor, for which the defendant would himself make payment directly to the surveyor, as a matter of business between him and such surveyor. There are no allegations that would authorize the conclusion that the defendant ever agreed for the plaintiffs themselves to contract with a surveyor, pay for his services, and then charge the amount to the defendant in reduction of the purchase-money or otherwise. Whelan v. Edwards Hackney,29 Ga. 315; Patillo v. Smith Clifford, 61 Ga. 265 (2);Wright c. Co. v. Hammond, 41 Ga. App. 738 (2) (154 S.E. 649).

It follows that the plaintiffs were not authorized to deduct the expense of the survey in arriving at the amount due under the contract.

Second. Nor were the plaintiffs right in deducting the amount of $12.65 for revenue stamps. While, under the Federal statutes, it seems that the duty of seeing that a deed of conveyance bears the requisite amount of revenue stamps is one resting primarily upon the grantor, and that he would be subject to criminal prosecution for failure to perform such duty, the purchaser can not rightfully claim this obligation as a money liability due to himself, and consequently he can not, in making a tender, deduct the amount of such stamps from the agreed purchase-price. Under the facts alleged in the instant petition, the deed would pass title if no revenue stamps should be attached, and the plaintiffs could not in advance charge the defendant with the cost of such stamps, even if they might do so later, in the event that they should have to bear such expense because of his ultimate failure to meet it. Nothing to the contrary appearing, the presumption is that the defendant will perform his duty in this respect to the Federal Government, if and when he is required by the court to execute a deed. See, in this connection, 26 U.S.C.A., §§ 1809, 1821;Small v. Slocumb, 112 Ga. 279 (3), 282 (37 S.E. 481, 53 L.R.A. 130, 81 Am. St. Rep. 50); Home Title Ins. Co. v. Keith, 230 Fed. 905; Cole v. Ralph, 252 U.S. 286 (40 Sup. Ct. 321,64 L.ed. 567); Schermer v. Wilmart, 282 Penn. 55 (127 A. 325); 16 Am. Jur. 490, § 91; 26 C. J. S. 229, § 36.

It is declared in the Code, § 29-115: "Without an express stipulation to the contrary, a purchaser must pay the costs of the conveyance." One of the contentions of the plaintiff in error is that, under the terms of this section as applied to the facts alleged, the expense of supplying the revenue stamps should fall upon the purchaser, the defendant in error. While we can not agree with this contention, it does not follow that the purchaser was entitled to deduct such expense in calculating the amount that he would tender to the alleged seller; and in view of what has just been said, we do not think that the deduction was authorized in the instant case.

Third. Were the plaintiffs liable for interest? As we have seen, the written agreement provided that the purchase-money was "to be paid as follows: Terms cash," and it appears from the petition that the plaintiffs, with the consent of the defendant, immediately went into possession. Under these circumstances, without more, the plaintiffs would be liable for interest from the date of such entry. While the written agreement allowed the purchasers a reasonable time for examination of title, they are not entitled to postponement of liability for interest upon that ground, since they do not show that any time was desired or needed for that purpose. In other words, the plaintiffs did not in their petition claim that there was any delay whatever on account of title or examination of title.

Nor are the plaintiffs excused from liability for interest because of the delay of several months in obtaining a survey to ascertain the number of acres and calculate the amount of purchase-money. This is true for the reason, as we have seen above, that under the terms of the contract the duty of obtaining such survey rested upon the purchasers, and they could not avoid the payment of interest by waiting on the defendant to have the land surveyed, when he was under no obligation to do so. It follows that the offer of the plaintiffs to pay a stated sum of money into court was insufficient because it did not include an offer to pay interest at the legal rate from and after the date they acquired possession; no tender having been made such as would stop interest. Code, § 20-1105; Adams v. Foster, 141 Ga. 438 (1) (81 S.E. 201); Perdue v. Young, 154 Ga. 220 (3) (113 S.E. 801); Leafgreen v. La Bar, 300 Penn. 369 (150 A. 656,75 A.L.R. 312, ann. pp. 325-331).

While the amount of the purchase-money was not actually known at that time, it was nevertheless subject to the rule, that is certain which can be made certain, since it appears from the allegations that the amount could have been readily ascertained by a correct and proper survey. Code, § 57-110; Bartee v.Andrews, 18 Ga. 407 (2); Council v. Hixon, 11 Ga. App. 818 (4), 827 (76 S.E. 603). The allegations do not show any valid excuse for failure to have a survey promptly made, and the plaintiffs should therefore be charged with interest from the date they acquired possession.

The court should not require specific performance at the instance of a purchaser who merely offers to pay into court a specific amount, where that amount is insufficient to discharge his liability under the contract. Such is the present case as related to the duty of the plaintiffs to do equity, and for this reason the petition was subject to general demurrer.

4. Other contentions urged by the defendant under the general demurrer are: That the petition shows the plaintiffs have been in possession of the property and making use of it for a considerable time without offering to pay rent and without showing any legal excuse for failing to tender performance of the contract for several months; and that it is not alleged that they tendered performance within a reasonable time.

Since it appears from the allegations that the plaintiffs went into possession as purchasers, they were not required to account for rents, but instead they were liable for interest, as ruled in the preceding division. As to failure to offer performance for several months, or to allege why performance had not been tendered (as insisted) "within a reasonable time," it is sufficient to say that, since time is not generally of the essence of a contract and was not by express stipulation or reasonable construction made such in this instance the petition was not subject to general demurrer for either of the reasons just stated. Code, § 20-701 (9);Ellis v. Bryant, 120 Ga. 890 (1) (48 S.E. 352); Clower v. Godwin, 140 Ga. 128 (2) (78 S.E. 714); Burkhalter v.Roach, 142 Ga. 344 (3) (82 S.E. 1059); Eaton v. Harwood,198 Ga. 240 (31 S.E.2d 473); Irvin v. Locke, 200 Ga. 675 (supra).

5. It is argued further that the petition should have been dismissed on general demurrer under the principle ruled inBurkhalter v. Roach, 142 Ga. 344 (1), 348 (supra), as follows: "The defendant was obligated to sell the land as described by her, and the courts will not compel her to execute a deed to land differently described. What the plaintiff is entitled to, upon payment or tender of the purchase-money, is a performance of the contract which the defendant obligated herself to perform; and that is, to execute a deed having the description of the land as contained in the contract."

While the description be metes and bounds, as contained in the plat and as copied therefrom in the petition, added much to the key language contained in the contract, and while under theBurkhalter case the plaintiffs would not be entitled to a decree requiring the defendant to execute a deed containing such enlarged description, the petition would not be fatally defective and subject to general demurrer upon this ground, where the contract did contain sufficient key language, and the allegations were otherwise sufficient to authorize the introduction of extrinsic evidence for the purpose of applying the description expressed in the contract to the land intended to be conveyed; and this is true, even assuming that the plaintiff may have prayed for more with respect to description than the court would be authorized to decree under the contract. Kupferman v.McGehee, 63 Ga. 250 (7). In the Burkhalter case, it appeared that the plaintiff was seeking a conveyance that was actually in conflict with the description contained in the contract. For this reason it was held that the petition should have been dismissed on demurrer. In the present case, there is apparently a mere amplification, and not a conflict.

6. In view of what has been said above, in reference to the general demurrers, we deem it sufficient to discuss in particular only a few of the special demurrers.

The allegations as to possession, cultivation, and improvements did not show that the plaintiffs were seeking specific performance of an oral agreement, as insisted; the petition as a whole including the prayers showing clearly that they merely sought a decree based upon the written agreement. Nor were the allegations just mentioned entirely irrelevant to that claim, since they tended in some measure to strengthen the plaintiffs' position. Stonecypher v. Coleman, 161 Ga. 403 (131 S.E. 75); Bruce v. Jennings, 190 Ga. 618, 620 (10 S.E.2d 56). Accordingly, there was no merit in any of the special demurrers attacking the allegations in paragraphs 7 and 11 as to possession, cultivation, and improvements, on the ground that they were irrelevant and immaterial and rendered the petition multifarious. Stephens v. Whitehead, 75 Ga. 294 (2);Allred v. Tate, 113 Ga. 441 (39 S.E. 101).

In division 2, we said that the allegations of the petition as to identity of the land described in the contract were sufficient as against a general demurrer to render extraneous proof admissible; nor were these allegations objectionable as being mere conclusions of the pleader, as contended in one of the special demurrers.

It appearing from the allegations that W. R. Lively has no interest whatever in the litigation, and that the failure to make him a party could in no way adversely affect the defendant, C. M. Lively, the petition was not subject to demurrer for failure to make W. R. Lively a party, either as plaintiff or defendant. Code, § 37-1004; Lang v. Brown, 29 Ga. 628 (1); Fountaine v. Urquhart, 33 Ga. Supp. 184 (2); Wardlaw v. Hammond,146 Ga. 643 (92 S.E. 42); Spicer v. Macklin, 164 Ga. 135 (3) (137 S.E. 828). The allegations as to payment to W. R. Lively and execution of a deed by him were relevant and proper for the purpose of showing why he was not made a party defendant.

Nor was there merit in any of the remaining special demurrers, except that some of those which assailed allegations in reference to tender were apparently meritorious; but, in view of the rulings made in division 3, dealing with the sufficiency of these allegations to withstand general demurrer, it is unnecessary to rule upon the special demurrers attacking the same allegations.

For the reasons indicated in division 3, supra, the court erred in overruling the general demurrer to the petition as amended.

Judgment reversed. All the Justices concur.