Opinion
12832.
NOVEMBER 17, 1939.
Equitable petition. Before Judge Humphries. Fulton superior court. February 15, 1939.
H. A. Etheridge, for plaintiff. W. S. Northcutt, for defendant.
1. A person who brings a suit for the use of another is the real plaintiff, and any defense which the defendant has against him can be set up. Joiner v. Singletary, 106 Ga. 257, 260 ( 32 S.E. 90). For breach of a bond the obligee can sue without naming "any usee," or, so far as the defendants are concerned, he could sue "for the use of any person, or persons, whom he might designate to take the proceeds of the action; provided, in so doing, he did not cut the defendants off from any defense which they would otherwise have. Burke v. Steel, 40 Ga. 217; Buffington v. Blackwell, 52 Ga. 129; Gilmore v. Bangs, 55 Ga. 403; Cross v. Johnson, 65 Ga. 717; Davis v. Baker, 71 Ga. 33; Richmond Danville R. Co. v. Bedell, 88 Ga. 591 [15 S.E. 676]; Terrell v. Stevenson, 97 Ga. 570 [25 S.E. 352]; Joiner v. Singletary, 106 Ga. 257 [32 S.E. 90]; Norcross Manufacturing Co. v. Summerour, 114 Ga. 156 [39 S.E. 870]." Fidelity Deposit Co. v. Nisbet, 119 Ga. 316, 321 ( 46 S.E. 444). See Ford v. Atlantic Compress Co., 138 Ga. 496 ( 75 S.E. 609, Ann. Cas. 1913d 226).
2. "Specific performance of a contract (if within the power of the party) will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for the non-performance." Code, § 37-801.
3. At the time of entering into a written executory contract whereby a vendor agreed to sell and a vendee agreed to purchase described land at a stated cash price, "upon the titles being found to be good, legal and unincumbered," the vendor signed a formal warranty deed purporting to convey the land to the vendee, and placed it in the hands of the vendor's attorney to be delivered to the vendee upon payment of the purchase-price. On the same day a third person not appearing to have any interest to protect, or express contract for reimbursement, advanced the purchase-price to the attorney and "took up" the deed. Shortly thereafter, the title being found "good, legal, and unincumbered," the third person tendered the deed to the vendee and demanded payment of the purchase-price. The vendee, not questioning the tender, refused to accept the deed and pay the price, on the ground of rumors reflecting on the title of the vendor. The vendor, suing for the use of the third person, brought an action against the vendee, alleging the foregoing in substance, and a continuing tender of the deed, and praying only for judgment for the amount of the purchase-price with interest from the date of the contract, and for process. Held: ( a) Taking into consideration the substantial allegations and prayers of the petition, the action as brought was not for the equitable remedy of specific performance of the executory contract, but was a suit at law for the stipulated purchase price of the land.
( b) The principle stated in National Ben Franklin Fire Insurance Co. v. McGann, 170 Ga. 573 ( 153 S.E. 362), "To maintain a suit for the use of another, there must be a legal right of action in the party bringing the suit," has no relevancy to the character of the present action as ruled above. Neither have the rulings in Ledbetter v. Goodroe, 179 Ga. 69 (3) ( 175 S.E. 250), and Shropshire v. Rainey, 150 Ga. 566, 570 ( 104 S.E. 414), relating to sufficiency of grounds for the remedy of specific performance, any relevancy to the character of the action that was brought in this case.
( c) The action being of the character indicated, the supreme court is without jurisdiction of the bill of exceptions assigning error on a judgment dismissing the action on general demurrer to the petition. Jasper School District v. Gormley, 184 Ga. 756 ( 193 S.E. 248). The Court of Appeals has jurisdiction of the writ of error.
Transferred to the Court of Appeals. All the Justices concur.
No. 12832. NOVEMBER 17, 1939.
Eaton B. Hill listed for sale, with H. A. Etheridge Sr., a cemetery lot at the price of $100, to be consummated on or before August 21, 1937, "after which the lot would be withdrawn from sale, or the price increased." Etheridge negotiated a sale to T. E. Shaw. A paper dated August 19, 1937, purporting to be a contract between Hill to sell and Shaw to buy the lot, was signed, "Eaton B. Hill, by H. A. Etheridge, Agt.," and by "T. E. Shaw." It contained the clause: "Terms, one hundred dollars cash, upon the titles being found to be good, legal, and unincumbered." Hill signed a warranty deed to Shaw, and placed it in the hands of his attorney, Noah J. Stone, to be delivered when the purchase money should be paid. On account of the shortness of time intervening before August 21, in which to examine the title, H. A. Etheridge Jr., advancing the money, paid the price into the hands of Stone and "took up the deed." Examination showed title to the lot "to be good, legal, and unincumbered." On September 4, 1937, the deed was tendered by H. A. Etheridge Jr. to Shaw and demand made for payment of the one hundred dollars. Shaw refused to accept the deed and pay the money, unless the cemetery company would "sign an agreement to open a grave on said lot when so requested to do." This refusal by Shaw was on account of a community rumor that the president of the cemetery company had said he would not open a grave on the lot because Mrs. Wells had said she had some claim against the company. The fact is that the attorney for Mrs. Wells admits that whatever claim she may have has nothing to do with the title to the lot in question, which was sold by the company in 1927 to the immediate grantor of Hill. On February 15, 1938, a suit was instituted by Hill, for the use of Etheridge Jr., against Shaw. The petition alleges substantially all that is stated above, and further that petitioner makes continuous tender of the deed to Shaw, "and prays judgment for the hundred dollars purchase-money, together with interest on same at 7 per cent. per annum since Aug. 19, 1937." The judge dismissed the case on general demurrer, and the plaintiff excepted.