Dickey v. Comer , 139 Ga. 166 ( 1912 )

Beck, J.

(After stating the facts.) The court below properly sustained the demurrer to the. petition. Under the plaintiffs own construction of the written assignment of the “option-contract,” while the contract provided for the payment to petitioner of the sum of $86,000, it was understood that the said sum was to be paid bjr first paying over to R. C. Neely $70,000 on account of the purchase-price for the lands referred to in the option and an amount sufficient to. cover the expenses incurred by him in improving these ' lands. This statement in the plaintiff’s pleadings, so far as it admits that the payments should be made to Neely, will be taken as true as against' the plaintiff in passing upon this demurrer. But the allegation that, under the terms of the written assignment, only $6,000 was to be paid to Neely on account of expenses and $10,000 was to be paid to plaintiff (a construction of the writing favorable to the pleader himself) can not be accepted unless it is borne out by the terms of the writing which was being construed by the pleader. Construing the assignment of the option in connection with the paper assigned, it is manifest that the holder of the option, in order to avail himself of its terms, had to pay, before the expiration of the time limit fixed in the option, the p-urchasepriee of the lands, $70,000, “and such additional sum as will cover all expenses which may be incurred by said Neely” (the giver of the option) “in improving said place.” There was no undertaking of guaranty, under the terms of the assignment, by Comer that the expenses should not amount to more than $6,000, and nothing to bind him on his part to refuse to meet the demands of Neely for expenses incurred in improving the land in excess of $G,000. It appears from the date of the assignment, and the limit as to time within which the option should expire, that it was necessary for Comer to act within ten daj^s after he became the holder of the option, in order to secure title to the lands under that option; and it was necessary that he should pay, in addition to the $70,000 for the purchase-money of the lands, “all expenses” which had been incurred by Neely in improving the lands; and it is not alleged in the petition that the difference between $70,000 and $86,000 had not been expended by Neely in improvements. There was no limitation in the option put upon Neely as to the extent or character of the improvements which he might place upon the lands; and if he incurred an expense of $16,000 in placing improvements there, he was entitled to a repayment of this, together with the $70,000, before he would be bound by the option. And these amounts had to be paid by October 10, 1905. We have said that there is no allegation in the petition showing that Neely had not placed improvements costing as much as $16,000 upon the land. In saying this we have not overlooked the allegation in the petition that “Neely had no legitimate claim, under the contract hereinbefore referred to, to be paid on account of expenses in improving the realty, more than six thousand dollars.” That allegation does not amount to a positive denial that Neely had incurred an expense of $16,000 in making improvements on the land It might have been intended fox such a denial, or it might have been intended to be the basis of a contention upon the part of the plaintiff that the improvements were not of such' character as would entitle Neely to claim reimbursement for the expenses incurred in making them. When Comer became the holder of the option he was confronted with the necessity of complying with its terms within ten days, or of abandoning* any advantage that he might have under its terms; He therefore paid the $70,000, the original purchase-price of the plantation, and $16,000 for improvements, according to the claims of the defendant as alleged in the petition (construing the expression “practically 'all” to amount to “all,” as against the pleader); which claim of the defendant, that he had paid all of the $16,000, is not negatived by any positive averment in the petition. Under the terms of the written instrument called the contract of assignment in the pleadings, the defendant would not become indebted to the plaintiff in any sum until the delivery to the defendant, Comer, of a warranty deed from Neely, conveying to Comer a clear and unencumbered title to the property, and such a deed Comer could obtain, under the option, only by payment, in addition to the sum of $70,000, of a sum equal to the amount of the expenses incurred by Neety in making improvements upon the place; and no liability of Comer to the plaintiff is shown by the petition, in the 'absence of a distinct allegation that the expenses incurred by Neely in making improvements upon the lands purchased were less than $16,000, or that Comer had' not been compelled to pay as much as the $16,000 in addition to the purchase-price of the lands in order to secure a conveyance from Neely in accordance with the option. In the absence of such affirmative allegation of a pa3unent by Comer to Neely of a less sum than $16,000 for improvements, or that the improvements placed upon the lands cost Neefy less than $16,000, the petition did not state á case against the defendant, entitling the petitioner to maintain a silit for a breach of the contract or for an accounting.

Judgment affirmed.

All the Justices concur.