Summary
In Clover Realty Co. v. McLeod, 124 Ga. App. 160 (183 S.E.2d 33) and Barto v. Hicks, 124 Ga. App. 472 (184 S.E.2d 188) the real estate contract was in writing and specified in detail the terms and conditions of the proposed loan upon which the transaction was made contingent.
Summary of this case from Kenimer v. ThompsonOpinion
46314.
ARGUED JUNE 1, 1971.
DECIDED JULY 2, 1971.
Action for broker's commission. DeKalb State Court. Before Judge Mitchell.
Joe H. Bynum, Jr., for appellant.
Dennis J. Mock, for appellee.
By stipulation the only question in this action by a broker against the prospective purchaser of real estate for commissions is whether the contract providing for such fee is sufficiently definite to be mutually enforceable. "If, in a contract for the sale of real estate, the initial payment of the purchase money is contingent upon an event which may or may not happen, at the pleasure of the buyer, the contract lacks mutuality." F C Investment Co. v. Jones, 210 Ga. 635, 636 ( 81 S.E.2d 828). Thus, a contract of sale to the effect that the purchaser is "to secure F. H. A. loan in amount of" a stated sum and that the sale could not be closed until after notification by the mortgage company was held to lack mutuality. St. Paul Fire c. Ins. Co. v. Mose Gordon Constr. Co., 121 Ga. App. 33 ( 172 S.E.2d 459). On the other hand, the fact that the contract is contingent upon the purchaser's ability to obtain a loan on the property is not void, the distinction being drawn between contracts which place the contingency in the discretion of one of the contracting parties and those where the contingency is based on the purchaser's ability to obtain a loan. Sheldon Simms Co. v. Wilder, 108 Ga. App. 4 ( 131 S.E.2d 854); Stovall Realty Ins., Inc. v. Goff, 117 Ga. App. 94 ( 159 S.E.2d 467). A sale contract may be drawn contingent upon the availability to the purchaser of a mortgage loan, provided the subject matter, terms, interest and time are set out with sufficient specificity. While not enforceable until the condition is met, the contract is not for that reason void on its face, and the question of availability of the loan (which determines the purchaser's ability to obtain it) becomes one of proof on the trial of the case.
The remaining special stipulations in the sale contract, which include exchange of dining room fixtures, installation of a double oven and venting of a clothes dryer, are not so vague and indefinite as to void the entire contract.
The trial court erred in granting summary judgment to the defendant who signed as purchaser on a tripartite real estate sale contract and thereafter allegedly refused to purchase on the ground that the contract was too indefinite to constitute an enforceable agreement.
Judgment reversed. Bell, C. J., and Pannell, J., concur.