Colonial Hill Co. v. Greenoe

Bell, J.

(After stating the foregoing facts.)

The notes sued on and the written agreement simultaneously executed are, of course, to be construed as one contract. But when so construed and when examined as a whole, they show an unconditional promise on the part of Mrs. Greenoe to purchase and pay for the land. The stipulations upon which she relies to sustain her contention that she could terminate her obligation at will by default were evidently included for the purpose of affording remedies to the land company in case of her failure to pay. Whether the law would have allowed the land company or its transferee to measure its rights absolutely by the letter of the agreement, we do not have to decide in this case. The remedy which the transferee has seen fit to adopt is a suit upon the notes, and we think it is clear that the defendant’s mere default could not be advanced as a bar against liability. The contract was not a mere option to buy. It was a promise to buy, and this is true irrespective of the entangled relations which some of its phraseology might have sought to create. Further discussion seems to be unnecessary in view of tbe following authorities, which we think are controlling: Enterprise Distributing Corp. v. Zalkin, 154 Ga. 97 (113 S. E. 409); Edwards v. Capps, 122 Ga. 827 (50 S. E. 943); Lytle v. Scottish American Mortgage Co., 122 Ga. 458 (50 S. E. 402); Griffith v. Collins, 116 Ga. 420 (2) (42 S. E. 743); Finlay v. Ludden, 105 Ga. 265 (2) (31 S. E. 180); Blitch v. Edwards, 96 Ga. 606 (24 S. E. 147); Hays v. Jordan, 85 Ga. 741 (2) (11 S. E. 833, 9 L. R. A. 373); Oaks v. Singer Sewing Machine Co., 17 Ga. App. 517 (2) (87 S. E. 719); Haag v. Rogers, 9 Ga. App. 650 (72 S. E. 46). The conclusion announced above is not in conflict with the decisions of the Supreme Court in any of the following cases, cited by the defendant in error: Allison v. Dunwody, 100 Ga. 51 (2) (28 S. E. 651); Reddick v. Hutchinson, 94 Ga. 675 (21 S. E. 712); Melson v. Dickson, 63 Ga. 682 (36 Am. R. 128). In each of these cases the contract was materially different from the one here involved. Counsel for the defendant in error cite also the following cases decided by this court: Manley v. Underwood, 27 Ga. App. 822 (2) (110 S. E. 49); Hodnett v. Mann, 10 Ga. App. 666 (73 S. E. 1082); Wilkins v. Fulcher, 9 Ga. App. 68 (70 S. E. 691). It may or may not be that these cases are distinguishable from the present case. Suffice it to say that the decisions of the Supreme Court, where applicable, have priority as precedents. See especially Finlay v. Ludden, supra.

The plea failed to show a rescission by the plaintiff. The plaintiff's delay in suing and its payment of the taxes are the only bases for rescission set forth in the pleadings, and these are insufficient as a matter of law. There was no mutual abandonment of the contract merely in the defendant's failure to pay and the plaintiff's failure to sue. The plaintiff's interest in the security was sufficient explanation of its payment of the taxes, and no rescission would result from this act. Nor would it result from both of the facts pleaded. 27 E. C. L. 659, §§ 421, 429; 39 Cyc. 1381-92.

The defendant's answer set forth no valid defense. The municipal court was right in striking it and entering judgment for the plaintiff, and the superior court erred in sustaining the certiorari.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.