East Side Lumber & Coal Co. v. Barfield , 195 Ga. 505 ( 1943 )

Where a petition for specific performance, cancellation, injunction, and special damages shows that it is impossible to specifically perform, that the note and deed sought to be canceled are valid legal obligations of the petitioner, and that no special damage has been sustained, but that if a future contingency should arise the petitioner would sustain stated damages. no cause of action is stated, and the petition should be dismissed on general demurrer.

No. 14461. MARCH 10, 1943. On the former appearance of this case (193 Ga. 273,18 S.E.2d 492) the judgment of the trial court overruling a motion to dismiss the petition was reversed on the ground that the petition failed to allege that the defendant contracted to procure the omitted inspection, and consequently failed to charge any breach of duty on the part of the defendant. The substance of the petition is there set out. Before the remittitur from this court was made the judgment of the trial court, the plaintiff tendered an amendment in which it was alleged that the defendant agreed and obligated under its contract with the plaintiff to have the Federal Housing Administration make the second and third compliance inspections, and that the defendant breached its contract by failing to have the second compliance inspection made. To the judgment allowing this amendment over the defendant's objection exceptions pendente lite were filed; and error is now assigned thereon. Another amendment by the plaintiff, giving the name of the defendant's agent with whom he dealt, was allowed over defendant's objection, and error is assigned on exceptions pendente lite to the order allowing this amendment. In paragraph 37 of the original petition it is alleged that the plaintiff has an investment of $600 in the lot on which the dwelling has been constructed, and that he has additional investments therein consisting of a water-heater of the value of $112 and various and sundry minor expense of the value of $50, "so that if he should be divested of title to said property he would sustain an actual loss of $762." In paragraph 38 it is alleged that in addition to the foregoing loss which he may sustain he has been compelled, since the completion of the dwelling on June 1, to rent quarters for himself and family at an expense of $30 a month, so that at the date of the filing of the petition he has spent $60 for rent; and that unless granted the relief sought, he will continue to suffer damages and expenses in the same ratio. The relief prayed for was specific performance of the contract; surrender and cancellation of plaintiff's note for $3300 executed to the defendant, together with the deed to secure the note; for injunction to prevent the sale of the premises under the security deed; that the defendant be required to accept $2800 in full satisfaction of its note against the plaintiff for $3300; and that in lieu of specific performance the plaintiff have damages in the amount of $822 already sustained, and for such future damages as might be sustained before the trial; for possession of the premises, or the appointment of a receiver; and for general relief.

The defendant filed a general demurrer to the petition as finally amended. To the judgment overruling the demurrer it filed exceptions pendente lite, on which error is now assigned. The trial resulted in a verdict answering ten questions submitted to the jury by the court, having the effect of awarding damages to the plaintiff of $700, and canceling the defendant's note for $3300 against the plaintiff, together with the deed to secure the same. Decree was entered conformably to the verdict, and in addition decreeing "that title to said property shall vest in defendant." The defendant excepted to the judgment overruling his motion for a new trial. The petition as finally amended seeks relief because of the defendant's alleged breach of contract by failing to procure the second F. H. A. inspection, resulting in the refusal of the F. H. A. to abide by its commitment to insure a loan for $3400. It shows that the plaintiff is still the holder of title to the premises involved, and that the defendant's claim against this property, represented by a note and security deed, is for a valuable consideration, is valid, and was voluntarily assumed by the plaintiff. It shows that while the plaintiff was unable to obtain the insurance by the F. H. A. of a loan for $3400 on his premises, because of the defendant's alleged breach of contract, the plaintiff has suffered no injury therefrom. The only allegations relating to special damage are made in paragraphs 37 and 38 of the petition; and it is there alleged, not that the plaintiff has suffered damage in the amount of $762, but that he will suffer this damage if he is divested of title to the property. This does not show damage. It is purely speculative; and if the contingency named by the plaintiff, that is, his being divested of title, should occur, it does not follow that he would sustain the damage stated. It is not possible to penetrate the future and foretell what will be the amount of any bid made on the property if it is exposed to sale under the foreclosure. Should such a sale take place and should the property be sold for less than the defendant's claim, then the plaintiff would sustain a loss. On the other hand, should the property sell for enough to satisfy the defendant's debt and the cost of foreclosure, and leave a balance of more than $762 belonging to the plaintiff, then in that event the plaintiff would sustain no loss. These observations are sufficient to illustrate the speculative nature of the allegations, and hence to show that they are insufficient in law to authorize any recovery. Red v. Augusta, 25 Ga. 386; Kenny v. Collier, 79 Ga. 743 (8 S.E. 58); SeaboardAir-Line Railway v. Harris, 121 Ga. 707 (49 S.E. 703);Smalls v. Brennan, 14 Ga. App. 84 (80 S.E. 339). The reference to rent in paragraph 38 does not show damage sustained by the plaintiff; for it is not made to appear that the rent which he has paid for a home is excessive, or that he did not get full value for the amounts thus paid for rent; and there is no allegation in the petition showing how or in what manner the defendant is responsible for the plaintiff's having to pay the rent. The allegations are thus insufficient to authorize a recovery of any special damages. There is no prayer for general damages. The plaintiff would not be entitled to recover nominal damages under the Code, § 20-1409. Haber, Blum, Bloch Hat Co. v. Southern Bell Telephone Telegraph Co., 118 Ga. 874 (4) (45 S.E. 696); Hadden v. Southern Messenger Service,135 Ga. 372 (69 S.E. 480).

The plain recitals of the petition show the impossibility of granting the relief of specific performance; for it is shown that the second inspection must be made before the completion of the building, and the petition shows that the building has been completed. No grounds whatever are alleged for cancellation of defendant's valid note and security deed against the petitioner. And the petition showing that the debt is due, it thus shows the defendant's right to foreclose; hence injunctive relief is not authorized. There is nothing in the petition that would entitle the plaintiff to have his debt to the defendant reduced from $3300 to $2800, as prayed. The averments of the petition as amended show no right to the relief sought; and the court erred in allowing the amendments and overruling the general demurrer to the petition as amended. This error rendered the subsequent proceedings nugatory.

Judgment reversed. All the Justices concur.