Childs v. Lee , 224 Ga. 609 ( 1968 )

224 Ga. 609 (1968) 163 S.E.2d 726

CHILDS
v.
LEE et al.

24770.

Supreme Court of Georgia.

Argued September 9, 1968. Decided September 24, 1968.

Allen & Edenfield, James B. Franklin, for appellant.

Johnston & Brannen, Sam L. Brannen, for appellees.

NICHOLS, Justice.

The plaintiff filed a petition seeking specific performance under an option to purchase real estate. After the trial court overruled the plaintiff's motion for a summary judgment the present appeal was filed, and such judgment, as well as other judgments rendered prior thereto, is enumerated as error. Held:

Pretermitting the correctness of the judgments antecedent to the judgment on the plaintiff's motion for summary judgment, the judgment overruling the motion for summary judgment was correct.

While by amendment the plaintiff added the necessary averment to his petition relating to the value of the property (see Howington v. Juhan, 218 Ga. 748 (130 SE2d 822), and citations), this necessary averment was not supported by the affidavits and depositions submitted in support of the motion for summary judgment.

As was held in Crutcher v. Crawford Land Co., 220 Ga. 298, 304 (138 SE2d 580), with reference to the respondent's duty to submit proof on the hearing on the motion for summary judgment, such duty arises only after the movant has successfully carried the original burden of showing that no genuine issue of material fact remains in the case.

Since a decree of specific performance of a contract may be denied solely because the contract price is not fair, is not just, or is against good conscience, the failure of the plaintiff to submit proof in support of such issue authorized the trial court to deny his motion for summary judgment.

Judgment affirmed. All the Justices concur.