Crim v. Southern Realty & Trust Corp.

Jenkins, P. J.

1. Where two persons enter into a written contract whereby one agrees to sell, and the other agrees to buy, a described tract of land, and the contract remains wholly executory, in that the agreed purchaser has never been put in possession or taken a conveyance, and where the contract of purchase and sale does not contain a promise on the part of the vendee to pay the purchase-price, in the event either of such contracting parties refuses to comply the other is limited to a right to proceed either by an equitable action for specific performance, or by an action at law for damages for breach of the contract; and in such a ease the vendor can not maintain an action at law against the vendee for the purchase-price, even though he may have tendered a conveyance. Reed v. Dougherty, 94 Ga. 661 (20 S. E. 965). Where, however, as here, the executory contract of purchase and sale does contain a promise upon the part of the vendee to pay the purchase-money, the vendor may maintain his action therefor at law, but in so doing, in order to ripen and make absolute the obligation of the vendee, he must first, as a condition precedent to the institution of -the action, offer performance upon his own part in accordance with the terms of the contract-. Morris v. McKee, 96 Ga. 611 (24 S. E. 142); Johnson v. Coffey, 29 Ga. App. 407 (116 S. E. 125); Stanaland v. Chastain, 36 Ga. App. 581 (137 S. E. 409).

2. In the instant suit for the purchase-price of land, based on an executory contract of purchase and sale, the vendor failed to show such a tender of performance on his part as would give effect to the obligation of the vendee to pay the purchase-money, since the only prior offer of performance on the part of the vendor consisted of a tender of a deed to the vendee and another person jointly. Consequently the evidence does not authorize the verdict in favor of the plaintiff for the purchase-money, and the judge of the superior court erred in overruling the certiorari. This ruling being controlling, the other questions raised by the record are not dealt with.

Judgment reversed.

Stephens and Bell, JJ., coneur.