Parrish v. Waters

Felton, Chief Judge.

The petition in this case is construed to mean that the special executory provisions in the contract to sell were not carried 'forward in the deed conveying the property. The answer to the question presented in this case is found in the rationale of Knight v. Hedden, 112 Ga. App. 847 (146 SE2d 556), (certiorari denied), and cases cited therein. The amendment to the petition in this case that the parties intended that the special stipulations would survive the execution of the deed was not a conclusion of the pleader but the allegation of an ultimate fact supported by allegations in the petition. The provision in the contract “(2) Closing to be within thirty days—as soon as financing can be arranged,” means that the closing would occur as soon as financing could be arranged if the arrangement could be made within thirty days, otherwise, within thirty days at the most. This provision tends to support the theory that the special stipulations were to survive the execution of the deed for the reason that under the “closing” provision it could have been reasonably probable that the financing arrangement could have been, made in less than thirty days and before the special stipulations could have been performed. Under the above citations the intent of the parties may be gathered from the “entire contents of the instruments, or from the instruments and surrounding circumstances.” The petition in this case alleges evidentiary facts which necessarily would show, if proved, that at the time of the execution of the deed most if not all of the special stipulations had not been performed, which facts also lend support to the conclusion that the special stipulations should survive the execution of the deed. Any other conclusion would mean that the buyer waived the stipulations in the contract for which he had paid an amount which, under the contract, was included in the total purchase price. Under the above rulings and under the allegations of the petition, the petition alleged a cause of action good as against general demurrer as to the action for breach of the written contract. The alleged parol agreement is not enforceable because under the allegations there was no consideration whatsoever therefor and it added to the terms of the written agreement contrary to its terms.

The court erred in sustaining the general demurrer as to the action for a breach of the written contract.

Judgment affirmed in part; reversed in part.

Nichols, P. J., Bell, P. J., Jordan, Hall and Deen, JJ., concur. Frankum, Eberhardt and Pannell, JJ., dissent.