Alexander v. AMERICAN LEGION POST No. 28 OF CHAMBLEE

209 Ga. 285 (1952) 71 S.E.2d 627

ALEXANDER
v.
AMERICAN LEGION POST No. 28 OF CHAMBLEE, et al.

17891.

Supreme Court of Georgia.

Submitted June 10, 1952. Decided July 14, 1952. Rehearing Denied July 28, 1952.

Carl T. Hudgins, for plaintiff in error.

Pickett, Pickett & Pickett, J. E. B. Stewart and Robert K. Browne, contra.

CANDLER, Justice.

1. "Specific performance is not a remedy which either party can demand as a matter of absolute right, and will not in any given case be granted unless strictly equitable and just. Mere inadequacy of price may justify a court in refusing to decree a specific performance of a contract of bargain and sale; so also may any other fact showing the contract to be unfair, or unjust, or against good conscience. And in order to authorize specific performance of a contract, its terms must be clear, distinct and definite. A petition for specific performance, which fails to allege a case authorizing the relief sought under the application of the above-stated rules, is subject to demurrer." Coleman v. Woodland Hills Co., 196 Ga. 626 (27 S.E. 2d, 226); Studer v. Seyer, 69 Ga. 125, 126; Kirkland v. Downing, 106 Ga. 530 (32 S.E. 632); Shropshire v. Rainey, 150 Ga. 566 (104 S.E. 414); Huggins v. Meriweather, 177 Ga. 461 (170 S.E. 483); Johns v. Nix, 196 Ga. 417 (3) (26 S.E. 2d, 526); Jenkins v. Evans, 202 Ga. 423 (43 S.E. 2d, 501); Bullard v. Bullard, 202 Ga. 769 (44 S.E. 2d, 770); Ogletree v. Ingram & LeGrand Lumber Co., 207 Ga. 333 (61 S.E. 2d, 480); Code, § 37-805.

2. Assuming, but not holding, that the allegations of the petition as amended in the instant case were sufficient to show a lease with an option to purchase property, it was, nevertheless, otherwise fatally defective as an application for specific performance, for lack of necessary averments to show that the contract was fair, or just, or one which in good conscience should be performed; and this is true for the reason that the petition as amended does not allege the value of the property involved or facts from which the same may be ascertained. Ogletree v. Ingram & LeGrand Lumber Co., supra; Coleman v. Woodland Hills Co., supra; Higdon v. Dixon, 203 Ga. 67 (45 S.E. 2d, 423).

3. Where, as in the present case, there is a lack of necessary and indispensable allegations as to adequacy of consideration, the petition as amended failed to state a cause of action for specific performance of an option to sell property — the only relief sought; and the court should have sustained the defendants' general demurrer raising that question and should have dismissed the petition as amended. Ogletree v. Ingram & LeGrand Lumber Co., supra. It was error not to do so.

4. In view of the above ruling on the general demurrer, it is unnecessary to pass upon the special demurrers.

Judgment reversed. All the Justices concur, except Atkinson, P.J., not participating.