Thrower v. Logan , 137 Ga. 655 ( 1912 )

Beck, J.

(After stating the facts.) Pretermitting any discussion of the question whether or not the word “ agents ” is not mere descriptio personae, and whether, therefore, E. Eivers Eealty Company were not the only persons who could sue for a breach of the sales contract by Thrower and the other party thereto, notwithstanding the allegations in the petition that E. Eivers Eealty Company were in fact the agents of the plaintiffs and that this was known to Thrower, and conceding that the plaintiffs would have the same right to bring suit for a breach of this contract that their alleged agents, E. Eivers Eealty Company, would have had, we are of the opinion that the general demurrer to the petition should have been sustained. The written contract as it stands is plain, unambiguous, and complete. Under that contract the defendant had tbe right to decline performance “ if title of the vendor be legally insufficient and they fail to perfect the same within a reasonable time.” According to the showing in the petition, the plaintiffs never had a legally sufficient title. They hád no title; they had an interest in an option merely. And while it may be true that owing to the commercial standing of the plaintiffs they would in all probability have secured for Thrower a perfectly good title made through the true owner, it is also true that under the contract as it is written, Thrower, the defendant, contracted for a title coming through the vendors named in this paper constituting the contract. It might be that if the plaintiffs, while they did not have title at the time of the execution of this contract, had, within a reasonable time, acquired a sufficient title to the property in controversy, they would have been in position to exact performance upon the part of Thrower. But they did not put themselves in that' position at any time. They never had, up to the time of the expiration of the option, anything more than the legal right, upon compliance with their obligations under the option, to maintain an action for specific performance against the real owner of the property, in case he should refuse to convey, whereby they might acquire title. A tender of a bond for title from the real owner of the property was not the equivalent of a tender of a bond for title from the vendors named in the contract coupled with the showing that they had title to the property. See, in this connection, Wells, Fargo & Co. v. Page, 48 Or. 74 (82 Pac. 856, 3 L. R. A. (N. S.), 103, and the cases cited in the note). Suppose that, on the day when it is alleged that Thrower refused to perform his part of the contract, instead of refusing he had made a tender of the purchase-money in accordance with the contract; would the plaintiffs have -been able to perform? Clearly not. We do not overlook the fact that they alleged ability to perform, and that we are dealing with a refusal to sustain a demurrer to the petition. But the allegation of ability to perform, in the light of the entire petition, is nothing more than a conclusion of the pleader, and is to be construed in connection with other allegations in the petition showing that they were holders of an option given by the owner of the property; for we can not overlook the other distinct allegations in the petition showing that title and ownership was in Aldredge. Evidently the allegation in the petition that plaintiffs were able to perform, that is, make title, means merely that they were in position to enforce their rights under the option above referred to. But their rights under this option, however clear, were not the equivalent of the title actually acquired. We do not think that the petition, construed as a whole, shows that the plaintiffs were able to perform, and that if Thrower, instead of refusing to perform, had offered to do so, the plaintiffs could have complied with their obligation. And that being true, .the refusal of the. defendant to perform, and the declaration upon his part that he would not perform, gave the plaintiffs no right of action against him; and the petition should have been dismissed upon general demurrer.^

Judgment reversed.

All the Justices concur, except Hill, J., not presiding.