Northington-Munger-Pratt Co. v. Farmers Gin & Warehouse Co. , 119 Ga. 851 ( 1904 )

Lamar, J.

There was no plea of the statue of frauds, and the pleadings of the defendant, as well as the correspondence, written contract, and undisputed evidence leave no room to question the making of the contract on the terms stated or the authority of the agent to sell. The offer and acceptance made a complete contract,the obligation of each furnishing a sufficient consideration for that of the other. Civil Code, § 3661. The defendant insists that, construed in the light of the circumstances when the contract was made, it appears that the acceptance was with full knowledge by the buyer that the vendor was not in possession of the gin, and that it would be obliged to secure the property before it could comply. One can not make good title to that which he does not own. But that does not prevent him from contracting to convey property to be acquired by him in the future. He may make the obligation conditional upon his being able to acquire title frbm some one else (Lacy v. Hall, 37 Pa. St. 360; Forsyth v. Castlen, 112 Ga. 199; Civil Code, § 3537); but if he contracts absolutely, he will be bound by the terms of his agreement. And even if because of the want of title a decree for specific performance could not be rendered, this would not deprive the purchaser of his right to damages for the breach. Here the contract was not conditional. The offer to buy and the acceptance were absolute. The only uncertainty was as to the time when the payment should be made. That, instead of being fixed by the date of the month, was postponed until the vendor made a good title and delivered possession. The Farmers Company was bound to pay $1,000 for the gin outfit, if within a reasonable time the seller tendered a good title and made delivery. On the other hand, the Northington Company was bound within a reasonable time to tender such title and surrender possession. If a destruction of the property sold, or other fact, had operated to release the vendor from its liability under the contract, it is elementary that the Northington Company could not sell the gin to Freeman, and claim that it had become impossible to comply with its agreement. It could not disable itself, and then take advantage of its own wrong when sued for the consequent breach. Civil Code, § 3725; Pomeroy on Contracts, Specific Per. (2d ed.) §475. There was evidence to sustain the verdict as to the amount of the damages.

Judgment affirmed.

All the Justices concur.