Napier v. Union Cotton Mills , 93 Ga. 587 ( 1894 )

Lumpkin, Justice.

The Union Cotton Mills filed, an.equitable petition against Napier, praying the specific performance of a contract made by him with the plaintiff. .This contract was in the form of a written proposal by Napier, which was fully accepted by the directors of the plaintiff. A copy of the same appears in the reporter’s statement.

The petition alleges, in effect, that the consideration ■of Napier’s contract was the undertaking by the plaintiff to build a factory upon the land referred to. in his proposal, and that, in point of fact, the factory has been built at an expense of about $100,000. It does not unequivocally appear that the factory was erected upon the ten acres to be donated by Napiér, but this is the only reasonable inference to be drawn from the petition, taking it as a whole. Ve see no reason why Napier •should not be required, to perform at least so much of his contract as requires him to convey this tract of ten .acres to the plaintiff. The description of the same in the written contract is sufficiently definite to identify it; and besides, it appears from the allegations of the petition that, immediately after the acceptance by the plaintiff" of Napier’s proposition, he caused all the land referred to in the contract,, including the ten acres he had agreed to donate, to be surveyed and the boundaries marked, and had delivered "possession of “ said land ” to the plaintiff.

Under these facts, it would be simply monstrous to .allow Napier to retain the title to the ten acres, which, beyond all question, belong to the plaintiff because of the full and complete performance of it's contract, as above stated. An examination of the written instrument will show that, as to the several matters embraced in it, it is severable, and there can be no difficulty in •enforcing so much of it, at least,'as relates to the ten acres of land; the demurrer, though based on several grounds, being general and going to the petition as a whole, and not separately to any part of it. There was certainly equity in the petition, at least to .the extent indicated, and for this reason the court committed no -error in overruling the demurrer.

As to the several other matters embraced in'the contract, we do not at this time decide anything. If, after a trial of the case in the superior court, and a full development thereby of all the questions of law and fact involved, it should become necessary for this court to pass upon these questions, it will be time enough to do so then. In view of the great volume of business now pending before this court, and which the constitution requires-us to dispose of within a limited time, we cannot now undertake to settle questions which may not arise at all when the case is fully investigated. The demurrer was-general; the decision of the trial judge upon it was general, and so we rule generally that there was enough in the petition to withstand a demurrer of this kind.

Judgment affirmed.