Morris v. McKee , 96 Ga. 611 ( 1895 )

Atkinson, Justice.

1. It is not essential to the mutuality of a contract that a single evidence thereof he signed by both of the parties. If there be two copies of the instrument, each containing all the mutual obligations between the parties, and these separate instruments he signed the one by one of the parties and the other hy the other of the parties to the contract, and they so signed be mutually interchanged between the parties, this is equivalent to a signing, either of both parties to both the instruments or both parties to one of the instruments. In other words, the obligation of the contract becomes complete, and the formal reduction of the agreement to writing is as well accomplished as if there had been only one instrument and that signed hy each of the parties.

2. For the breach of a contract for the sale of land by the failure of the purchaser to pay the purchase price, an action may be maintained by the party selling, even though the purchaser had not entered into the possession of the land, nor actually received a deed thereto from the seller. The seller would not, of course, be permitted to retain the land and exact the purchase money; but if the purchaser declined to pay the purchase money at the time it fell due, it would be at the election of the seller, either to rescind the contract of sale, or to tender to the purchaser a deed and bring an action for the purchase money. Such actions, like all others for the breach of a contract, are open to the defenses- of failure of consideration, and the inability of the plaintiff’ himself to comply with his contract. But we know of no reason why, where two men solemnly agree in writing the one to buy and the other to sell at a given price, the latter may not, upon his offer to comply,- compel a performance upon the part of the former. If it be shown that the seller had no title to convey, then he could not recover the purchase money; but if he were willing and able to comply, he would be entitled to maintain an action against the purchaser for the breach of his covenant to buy.

3. It has been suggested to us that the case of Reed v. Dougherty, 94 Ga. 661, s. c. 20 S. E. Rep. 965, announces a principle contrary to the doctrine herein expressed. A slight analysis of the two cases, however, will make the distinction clearly apparent. The difference is pointed out with sufficient certainty in the third head-note to this opinion, without the necessity of further elaboration here.

Let the judgment of the court below be Affirmed.