Opinion
43413.
SUBMITTED FEBRUARY 6, 1968.
DECIDED MAY 9, 1968.
Action to recover earnest money. Fulton Civil Court. Before Judge Camp.
Hansell, Post, Brandon Dorsey, Gary W. Hatch, for appellant.
Jones, Bird Howell, C. Dale Harman, for appellee.
If the terms of a contract for the sale of realty show a gross consideration including the assumption of an incumbrance which is properly identified plus payment of the balance of the purchase price in cash on closing the transaction, the terms of payment can be ascertained by reference to the incumbrance and the contract is thus capable of enforcement.
SUBMITTED FEBRUARY 6, 1968 — DECIDED MAY 9, 1968.
The plaintiff, designated as purchaser in a contract for the sale of realty, brought this suit to recover the earnest money deposited with the real estate broker. The defendant broker filed a cross claim to recover the balance of the commission specified by the contract. The sole issue in the case was whether the contract was sufficiently definite to constitute an enforceable agreement. The parties stipulated facts necessary to the decision of the case, and both filed motions for summary judgment.
The trial judge held the contract too vague and uncertain, granted the motion for the plaintiff and denied that of the defendant, providing in his order that such denial be appealable. Code Ann. § 81A-156 (h) (Ga. L. 1966, pp. 609, 660; Ga. L. 1967, pp. 226, 238). In argument before this court the plaintiff-appellant insists the deficiency in the contract is relative to the terms under which the purchase price for the bargained property was to be paid, and appellee focuses his argument on the same facet of the case.
A contract for the sale of realty must expressly state the consideration or it must furnish a key by which the amount and terms of the purchase price can be ascertained; if the contract furnishes a key to the details of the consideration, that is sufficient. Muller v. Cooper, 165 Ga. 439, 442 ( 141 S.E. 300). If the terms of the written agreement show a gross consideration including the assumption of an incumbrance which is properly identified in the agreement plus payment of the balance of the purchase price in cash, the terms of payment can be ascertained by reference to the incumbrance and the contract is thus capable of enforcement. See Massell Realty Co. v. Hanbury, 165 Ga. 534, 544 ( 141 S.E. 653); Baker v. Lilienthal, 176 Ga. 802 ( 169 S.E. 28); Sturdivant v. Walker, 202 Ga. 585 (5) ( 43 S.E.2d 527). The test is whether the incumbrance is properly identified.
The clause of the contract relative to the amount of purchase money and the manner of payment reads: "Thirty seven thousand and no/100 ------ dollars ($37,000), to be paid as follows: Purchaser to assume seller's present loan, payable at Peachtree Federal Savings Loan for approximately $28,800 at 53/4% interest, payable monthly incl. prin. interest at $194.90. Balance to be paid in cash at closing. . . 2. Closing to be June 15, 1967." This contract names the gross consideration, specifies the assumption of a certain incumbrance, and provides for payment of the balance in cash on closing of the transaction. Identifying the incumbrance, the contract names the payee or collecting agent, who would hold evidence of the incumbrance, and specifies the approximate amount of the principal, the amount of interest and the manner of payment of the balance on the loan. Note that the contract was not conditioned on procuring the loan, as in F C Investment Co. v. Jones, 210 Ga. 635 ( 81 S.E.2d 828), but clearly refers to one already in existence. And the incumbrance identified is apparently one against the property which is the subject of the contract. Nickelson v. Owenby, 208 Ga. 352 (1) ( 66 S.E.2d 828). Reference to the incumbrance and mathematical computation would render absolutely certain the amount of cash payable, the number of monthly payments remaining and the dates on which payments would be due. We think it is obvious that this provision does not render the contract unenforceable for any reason argued.
This case comes under the principles followed in Muller v. Cooper, 165 Ga. 439, supra; Massell Realty Co. v. Hanbury, 165 Ga. 534, supra; Baker v. Lilienthal, 176 Ga. 802, supra; and Nickelson v. Owenby, 208 Ga. 352, supra. The cases of Trust Co. of Ga. v. Neal, 161 Ga. 965 ( 132 S.E. 385); Morgan v. Hemphill, 214 Ga. 555 ( 105 S.E.2d 580); Aycock Realty Co. v. Brown, 39 Ga. App. 649 ( 148 S.E. 291); Dunford v. Townsend, 100 Ga. App. 550 ( 112 S.E.2d 14) and others cited by plaintiff and in the dissenting opinion are clearly distinguishable on their facts from this case. The judgment of the trial court is reversed with direction to the trial judge to enter judgment in accordance with the prayers in defendant's counter claim.
Judgment reversed with direction. Felton, C. J., Jordan, P. J., Hall, Eberhardt, Pannell, Deen and Whitman, JJ., concur. Quillian, J., dissents.
The function of a contract for the sale of realty is to define precisely the rights to accrue and the obligation assumed by the signatory parties under its provisions. The standard of certainty requires that the language of the contract be sufficiently definite to set forth every essential element of the transaction so that the meaning of the agreement clearly appears without resort to parol evidence ( Morgan v. Hemphill, 214 Ga. 555, 557 ( 105 S.E.2d 580)), or that it furnish a directive or key through which the meaning of its material terms are made clearly to appear. In the case of Morgan v. Hemphill, supra, p. 556, it is held: "Where the amount of the purchase price fixed by the contract is certain and definite, but the terms of payment are indefinite and uncertain, the writing is not a contract and confers no rights and imposes no liability. Rush v. Autry, 210 Ga. 732, 734 ( 82 S.E.2d 866). See Saye v. Adams Loan c. Co., 173 Ga. 24 ( 159 S.E. 575); 49 AmJur 45, § 32."
The contract considered in the case sub judice contains the explicit and clear recital that the purchase price of the property bargained for is $37,000, but in undertaking to provide the manner of payment it stipulates the purchase price is to be paid by the buyer assuming a loan of approximately $28,800 bearing 5 3/4% interest and payable in stated instalments, the balance of the purchase price to be paid in cash. The instrument does not identify the loan as being held by a particular payee, state that it is a loan against the property purchased or furnished any other directive or key through which the amount of the loan can be ascertained.
The conclusion is inescapable that the contract does not, in definite language, stipulate the terms upon which the purchase price for the property therein described is to be paid, and for this reason is invalid and unenforceable. Cole v. Cutler, 96 Ga. App. 891, 892 ( 102 S.E.2d 82); Trust Co. of Ga. v. Neal, 161 Ga. 965 ( 132 S.E. 385); Hamilton v. Daniel, 213 Ga. 650 ( 100 S.E.2d 730); Morgan v. Hemphill, 214 Ga. 555, supra.