Council v. Wilson , 32 Ga. App. 432 ( 1924 )

Bloodworth, J.

(After stating the foregoing facts.)

As to the amendment alleging that Wilson made an agreement with Mrs. Pryor that neither would sell without the approval of the other, the record shows that Wilson proceeded along this line in the very beginning of his negotiations with the plaintiff, and the alleged contract of sale shows this on its face. No other specific acts are alleged which would show that Wilson interfered with or prevented Mrs. Pryor from selling the property.

The suit as originally filed was against Wilson and Mrs. Pryor, and alleged that the contract was for the sale of .the entire property. As amended it was against Wilson only, and alleged that the contract was for the sale of Wilson’s individual half interest in the property. The latter allegation is entirely inconsistent with the former. See Civil Code (1910), § 5683; Milburn v. Davis, 92 Ga. 362 (1) (17 S. E. 286). To be a contract for the sale of realty the description in the writing was extremely meagre. While the consideration to be paid for the land is set out, the writing shows no consideration .for the contract of sale. Except by implication, the petition does not even allege that the plaintiff offered to buy Wilson’s interest only. On the contrary, it appears that the negotiations contemplated a salé of the whole title and interest in and to the property involved. No legal tender of the purchase price was made by the plaintiff. The failure of Mrs. Pryor to approve the terms of sale released Wilson, under the specific terms of the writing. It is apparent from the above that a case for specific performance of this alleged contract could not be made out, and, this being true, a suit for damages for a breach of such contract could not be maintained. “In order to recover damages in lieu of specific performance, it is essential that a case for specific performance be made out.” Pippins v. Phillips, 123 Ga. 416 (51 S. E. 410).

The entire cause of action is based upon the writing attached to the petition, which alleges: “Your petitioner contracted for the purchase of said Barlow block above described, as _ evidenced by a writing signed by F. A. Wilson Sr., a copy of which is hereto attached and marked Exhibit A.” In the first place, the alleged contract throughout contains the personal pronoun “we;” which shows on its face that it was contemplated that it be signed by Wilson and Mrs. Pryor. Mrs. Pryor never did sign it, and no one signed it for her or purported to have authority to sign it for her. In the second place, such description of the property as is given in the alleged contract of sale is of the entire “Barlow block, . . being all of the property we own located in that block;” which shows that the entire property, and not merely Wilson’s half interest in it, was to be sold if any at all was to be sold. In the third place, the alleged contract distinctly provides in plain and unambiguous terms that “the above is subject to the approval of Mrs. Anna Pryor.” (Italics ours.) This being true, Wilson would not be bound under any circumstances unless Mrs. Pryor approved it; and he would not be bound even had the writing contemplated that he sell his own interest only;

Since the pleadings show on their face that the plaintiff’s cause of action was based on this writing, that the written proposition was not binding unless Mrs. Pryor approved it, that Mrs. Pryor never did approve it, and there was no • allegation to that effect, and that Wilson never agreed to sell his half only, the cause of action must fall, and the trial judge, therefore, properly sustained the demurrer and dismissed the suit.

Judgment affirmed.

Broyles, G. J., and Jjiücc, J., concur.