Opinion
38048.
DECIDED JANUARY 5, 1982.
Specific performance. Clayton Superior Court. Before Judge Crumbley.
Sam G. Dickson, for appellant.
J. Ed Segraves, William E. Zachary, Jr., for appellee.
The parties signed a contract on May 31, 1979, for the sale of real property to appellant Good. Attached was a "Work Sheet" setting out details pertaining to the construction of a house to be erected on the property by appellee Tri-Cep), Inc. (Tri-Cep). The house was not finished by the closing date, and upon completion of the residence Tri-Cep refused to close. Good brought this action seeking specific performance, damages, and other relief.
The trial court granted Tri-Cep's motion for partial summary judgment, finding that the documents entered into between the parties, as supplemented by the course of performance by the parties did not create a contract of sufficient specificity to render it capable of specific performance, and that there was no tender by Good to Tri-Cep.
1. We find that the contract sued upon is sufficiently definite and certain to sustain an action for specific performance.
It is manifestly impossible to spell out every detail in a construction contract. The contract of sale and the accompanying work sheet were supplied and completed by Tri-Cep. The work sheet specified a "House Plan," designated by a numerical code; other details were supplied, and an officer of Tri-Cep testified that it was their practice to fill in any omissions during the course of construction.
Tri-Cep argues that the contract expired upon the passing of the closing date. Good's checks were delivered to and negotiated by Tri-Cep after the original closing date, which raises an issue of fact as to whether the parties waived the time of performance. Perry Dev. Corp. v. Colonial Contr. Co., 231 Ga. 666 (4) ( 203 S.E.2d 475) (1974).
In addition, these checks, combined with notations made on the work sheet and initialed by an officer of Tri-Cep, are a sufficient writing with respect to minor modifications made in the design and construction of the house during the course of construction to satisfy the Statute of Frauds. See Code Ann. § 20-401.
The house has been completed and a decree of specific performance would require little or no supervision by the trial court. Thus, what is often a principal obstacle to specific performance of construction contracts is not present. See 164 ALR 802, anno., p. 808 et seq.; 38 ALR3d 1052, anno., § 5.
2. Tri-Cep contends the action must fail for want of tender, under § 20-1105. Good alleged in his complaint that on or about September 11, 1979 an agent of Tri-Cep came to his house and informed his wife that Tri-Cep considered the contract void for failure to close on the date specified and that Tri-Cep would not honor the contract. He made a similar allegation by affidavit, and stated in a deposition that he had no opportunity to make tender. "`[T]ender by the vendee before suit is excused if the vendor, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused.'" Banks v. Harden, 221 Ga. 505, 507 ( 145 S.E.2d 563) (1965), quoting Fraser v. Jarrett, 153 Ga. 441 (3) ( 112 S.E. 487) (1922). Accordingly, a factual issue is presented as to waiver of tender, and the grant of partial summary judgment was error. The case is therefore remanded for further proceedings consistent herewith.
Judgment reversed. All the Justices concur.