Summary
refusing to apply doctrine of laches to breach of contract action brought within statute of limitations period
Summary of this case from Langsfeld v. WynneOpinion
45271.
ARGUED APRIL 14, 1970.
DECIDED MAY 26, 1970.
Action for damages. Glynn Superior Court. Before Judge Flexer.
Aynes, Feldman Genins, R. John Genins, for appellant.
Nightingale, Liles Dennard, B. N. Nightingale, for appellee.
1. Since the petition sets forth a claim for damages arising out of a breach of contract involving real estate, the court erred in sustaining a motion to dismiss.
2. (a) The court erred in ordering certain parts of the petition stricken since these pleadings were not subject to the attacks of immateriality, impertinence, irrelevance, and scandalous matter.
(b) The court also erred in ordering the plaintiff to amend his petition in certain particulars to set out more definite statements, inasmuch as such pleadings were not so vague and ambiguous that the defendant could not frame proper responsive pleadings thereto.
(c) However, since interest is not allowable "eo nomine" in cases of unliquidated damages, the court did not err in granting the defendant's motion for a more definite statement as to how the defendant would be liable for interest" at the proper legal rate" on the damages alleged.
3. (a) Since under the sale contract the real estate broker was the agent of both purchaser and seller, and, according to the contract, the broker received the earnest money, the defense of the seller-defendant that he did not receive the earnest money is not meritorious as the same is immaterial and irrelevant, and an insufficient defense to this action.
(b) The parties having allegedly dealt at arm's length with each other, absent facts and circumstances showing a fiduciary relationship, and the alleged defense, in substance, that plaintiff was guilty of over-reaching and failed to tell the defendant the value of the land is insufficient as a defense to this action.
(c) Since this action was brought within the statute of limitation, laches could not be plead as a defense to this suit at law.
(d) All other motions of the plaintiff in regard to the answer and defenses of the defendant are, for the same reasons as stated in Headnote 2 (a and b) above, not meritorious, and the court did not err in refusing to strike certain portions of the defendant's answer or defenses as being vague, indefinite, ambiguous, redundant, immaterial and impertinent.
ARGUED APRIL 14, 1970 — DECIDED MAY 26, 1970.
This is a suit for damages resulting from a breach of a real estate contract allegedly as the direct result of the defendant executing said contract, having personal knowledge that he did not have sufficient title in said property to convey it according to the quoted terms. The plaintiff asked for a money judgment which included expenses of litigation, general and special damages, plus interest at the proper legal rate since the execution of the contract. The contract was for the sale of land by the tract at an agreed price per acre, the total acreage to be determined after the purchaser had obtained an accurate survey prepared by a registered land surveyor. The seller agreed to furnish a marketable title and to convey the property by warranty deed at the time the sale was consummated, subject only to zoning restrictions and the encumbrance specified in the contract. The purchaser was to have a reasonable time after acceptance of the contract in which to examine title, and to furnish seller with a written statement of objections affecting the marketability of the title. The seller was to have reasonable time after receipt of such objections to satisfy all valid objections, but if he failed to satisfy the valid objections within a reasonable time, then at the option of the purchaser, "evidenced by written notice to seller, this contract shall be null and void." The contract also contained a special stipulation that title was to be conveyed free and clear of all liens, easements, assessments, restrictions, covenants, encroachments and/or encumbrances. The special stipulations also required the sale to be closed on or before 90 days from the acceptance of the contract by the seller. In addition, one of the special stipulations was that if the described property was found to have title defects, or other encumbrances which would make it unmarketable, "then seller shall reimburse purchaser for the cost of the herein mentioned boundary line survey and title search expenses." The petitioner alleged that he had informed the defendant within 60 days of the time the contract was executed of the objections affecting the marketability of the title to said property, and that the defendant had employed an attorney to assist defendant in perfecting the title to the property, but that he subsequently discharged the attorney without giving him sufficient opportunity to perfect the title; that he made no further attempts to perfect the title; and his failing to do so constituted further wilful acts of bad faith; that he had advised defendant on numerous occasions that he was ready, willing and able to perform according to the terms of the contract, but, instead, the defendant conveyed a three-fifths undivided interest in the property to other parties which he pleads allegedly constituted additional wilful and fraudulent acts of bad faith.
The defendant answered, denying, in the main, the averments of the petitioner; that the complaint failed to state a claim, and that since the plaintiff based his claim for damages on a value of the property per acre far exceeding the price he was to pay for the property, that if there had been any bad faith or overreaching in the matter, the plaintiff having knowledge of the land values superior to that of the defendant, the plaintiff was guilty of fraud and bad faith which precluded him from any recovery of any kind or character in the matter. Thereafter the defendant filed numerous motions under the Civil Practice Act to (1) dismiss the complaint; (2) strike certain averments; (3) require the plaintiff to file a more definite statement in regard to (a) why any alleged interest should be allowed to be recovered on the damages from March 3, 1965, the date of the contract, and (b) in what respects the title to the property of the plaintiff was not sufficient to comply with the contract terms; (c) in what manner the defendant had acted fraudulently and in bad faith and with wilful intent to damage the plaintiff in entering into the contract; (d) how the plaintiff informed the defendant of the objections affecting the marketability of the title; (e) whether such statement of objections in writing was furnished the defendant by personal delivery or by mail or in what manner the same was furnished the defendant, if it was, and the date on which such alleged written statement, if any, was so furnished, specifying in detail what such statement of objections contained, if the same was a written statement; all of which defendant contended was needed by him in order to frame responsive pleadings thereto; and (f) how defendant employed an attorney, when such employment of attorney took place, the name of such attorney, and exactly what such attorney was to do in assisting defendant in perfecting the title to such property; (g) that plaintiff be required to show the various and numerous occasions in which the plaintiff had advised defendant that he was ready to perform according to the contract, showing the time, date or dates, and the method or manner in which plaintiff advised defendant to this effect; (h) to set out the date which plaintiff contends was the date of the alleged breach of the contract; and (i) when and by what means and in what manner the plaintiff arrived at the alleged fair market value of the property.
Thereafter the plaintiff filed certain motions to strike certain paragraphs of the answer as amounting to an insufficient defense to his complaint, and to strike two of the defenses claiming laches, unreasonable delay, and the alleged fraud of the plaintiff in executing an unconscionable contract which would preclude him from recovery of any kind or character whatsoever.
The court granted the defendant's motion to dismiss; overruled and denied each of plaintiff's motions, and approved and ordered the plaintiff to comply with each of the defendant's motions other than the motion to dismiss, and authorized an immediate review to determine the validity of this order in its entirety. The enumerations of error complain of the above order in its entirety, setting forth that the court erred in granting each and every motion of the defendant and denying the motions of the plaintiff.
1. Under our present notice pleadings, the plaintiff alleges damages arising out of a continued refusal of the defendant to consummate the sale of land or to clear the objections affecting the marketability of title. The contract attached to the petition required the seller to "furnish a marketable title," the "same to be conveyed free and clear of all liens, easements, assessments, restrictions, covenants, encroachments, and/or encumbrances." The contract provided that the purchaser would have a reasonable time after acceptance to examine the title and a reasonable time in which to furnish seller with a written statement of objections affecting the marketability of the title with the corresponding right on the seller's part thereafter, within a reasonable time, to satisfy all such valid objections. The total acreage was not known at the time of executing the contract, but it was provided therein that the purchaser should have the described tract of land surveyed to determine the exact acreage, and, in the event of defective title which was not cleared up, the expense of said survey was to be reimbursed by the seller to the purchaser. The price agreed upon for said sale was $167 per acre. The plaintiff alleges, in substance, that within the time provided by the contract, plaintiff notified defendant of certain objections to the title; that the defendant refused to perfect the title, and that his conduct was fraudulent because he had personal knowledge when he entered the contract that the title was insufficient. A claim for damages resulting from the breach is alleged. Harper v. DeFreitas, 117 Ga. App. 236 (1) ( 160 S.E.2d 260); Ghitter v. Edge, 118 Ga. App. 750, 752 ( 165 S.E.2d 598). Time was not of the essence of this contract, in requiring 90 days to close the sale, since no language was used voiding the contract after 90 days. Mangum v. Jones, 205 Ga. 661 ( 54 S.E.2d 603) and citations at page 667. See also special concurring opinion, Development Corp. of Ga. v. West, 116 Ga. App. 768, 772 ( 159 S.E.2d 94). Having allegedly pointed out the defects, the contract time was tolled to allow the seller a reasonable time to cure the defects, the reasonable time being a question of fact. Smith v. David, 168 Ga. 511 (1) ( 148 S.E. 265). The cases of Adams v. Bridges, 141 Ga. 418 ( 81 S.E. 203), wherein the conveyance was conditioned "if titles are clear," and Douglas v. Langford, 206 Ga. 864 ( 59 S.E.2d 386), where the law of the case was established in a ruling of the court, and defects were found in the pleadings in which certain averments were missing after amendment, differ on their facts from this case and are not authority for the court's ruling in the motion to dismiss, which was erroneous. The seller agreed to convey title free and clear of all encumbrances, not merely if the title was clear. Exemplary damages are not sought here but expenses of litigation for bad faith, unnecessary trouble and expense arising out of the alleged fraud of the defendant, and the cases of Federal Farm Mortgage Corp. v. Dixon, 185 Ga. 466 ( 195 S.E. 414); and Jones v. Central Builders Supply Co., 217 Ga. 190 ( 121 S.E.2d 633) are not in point. See Code § 20-1404. Further, the cases cited by appellee involving specific performance are not authority for the lower court's ruling.
The court erred in sustaining the motion to dismiss.
2. While the affidavit attached to the petition was self-serving, yet it was plead in paragraph 10 to show the plaintiff had recorded it in the Fulton County records giving constructive notice to all prospective purchasers of the existence of the contract by and between the parties, and of the dispute between them in regard to an alleged valid and existing contract. It also reflects upon the alleged wilful fraud of the defendant in conveying an undivided interest in the property to others having constructive knowledge and knowing the plaintiff was insisting upon his rights under the contract. The defendant's motion to strike paragraph 10 and the exhibit should have been denied.
The court also erred in sustaining certain motions to strike by defendant and in striking certain language as to the open defiance of the defendant in selling the property when the averments of the petition show he seeks damages for the alleged continued wilful acts of fraud of the defendant in this case. The court erred in striking this language and paragraphs 11 and 12 from the petition, including the exhibit "C," showing the conveyance. Whether or not the contract had expired remains to be determined from the evidence, but as plead by the plaintiff, it is allegedly in full force and effect. Code Ann. § 20-704 (9) (Ga. L. 1964, pp. 414, 415); Hudson v. Duke, 21 Ga. 403; Taylor v. Baldwin, 27 Ga. 438 ( 73 AD 736); Smith v. David, 168 Ga. 511, 523, supra; Development Corp. of Ga. v. West, 116 Ga. App. 768, 773, supra.
Motions for more definite statement are provided for in Code Ann. § 81A-112 (e) (Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106) (Civil Practice Act, § 12) and are not to be used merely as a substitute for discovery. Somewhere during the course of this case the plaintiff will be required to show more definitely and explicitly by evidence by what means the defendant was aware that defendant's title was defective and that defendant could not comply with the contract; but, as we construe the allegations of plaintiff's complaint, here attacked by motion for more definite statement, they are not vague and indefinite, for that if defendant had this knowledge from the very beginning, then it may be concluded that his act of entering into the contract was fraudulent. The contract required plaintiff to supply a written statement to defendant of the defects in title, but certain of these defects were within the knowledge of the defendant, because he allegedly employed an attorney to clear the title of said defects, but thereafter refused to continue the employment of said attorney, for some reason best known to defendant. Whether or not the knowledge of such defects came within the information of the plaintiff, and the way and manner in which he communicated same to defendant, are all questions of fact which are not required to be pleaded in this case.
However, the trial court did not err in sustaining defendant's request for more definite statement as to interest as alleged in paragraph 2 of plaintiff's complaint, wherein he sought to recover interest. Interest is not allowable "eo nomine" in cases of unliquidated damages. The same result is sometimes reached through the jury's addition into the principal amount of a sum "equal to interest," but we know of no law which allows the pleader to pray for and recover interest on unliquidated damages "equal to interest," but we know of no law which allows the pleader to pray for and recover interest on unliquidated damages "eo nomine." See Firemen's Ins. Co. v. Oliver, 53 Ga. App. 638 (3) ( 196 S.E. 706); Mills v. Mangum, 111 Ga. App. 396 (3) ( 141 S.E.2d 773); Western A. R. v. Michael, 178 Ga. 1 (6) ( 172 S.E. 66).
We have studied all of defendant's motions which seek to strike parts of the petition, and which request more definite statements in regard to same. Except as ruled above, the lower court erred in ordering the plaintiff to comply with the defendant's motions.
3. The contract attached to the complaint shows that the real estate broker was, in fact, the agent of both the seller and the purchaser. The failure of the defendant to personally receive the earnest money has no bearing on the issues here and is immaterial to this suit, and should have been stricken from the answer as a defense inasmuch as it appears that the defendant's agent received the earnest money, which is as binding upon the defendant as if the defendant had received it himself. Therefore the second sentence of the tenth defense should be stricken as an insufficient defense. The court erred in failing to strike this language on motion of the plaintiff.
The trial court also erred in failing to sustain plaintiff's motion to strike defendant's ninth defense and twelfth defense, both of which urge that "plaintiff knew or ought to have known" the value of defendant's land, whereas the defendant was without knowledge of the value thereof, and therefore it is contended plaintiff practiced a fraud against defendant respecting the contract for sale of said land at a price far less than its actual value. Both the plaintiff and defendant were in the same circumstances respecting their implied knowledge of the value of the land. See Westbrook v. Beusse, 79 Ga. App. 654 ( 54 S.E.2d 693); Morrison v. Colquitt County, 176 Ga. 104 ( 167 S.E. 321).
As to the contention that plaintiff overreached defendant, absent some fact or circumstances suggesting that there was a fiduciary relationship existing between plaintiff and defendant, or some circumstance which entitled defendant to rely upon plaintiff's imparting to him the true facts respecting the value of defendant's land, this is not a well-pleaded defense. No reason appears herein as to why defendant had the right to rely upon or expect plaintiff to deal with him other than "at arm's length."
There was also error in failing to sustain plaintiff's motion to strike the eleventh defense of defendant's answer, wherein defendant undertook to set up the defense of laches against plaintiff's claim which was brought within two years, whereas the statute of limitation allowed four years. Code Ch. 3-10; Frost v. Arnaud, 144 Ga. 26 (1) ( 85 S.E. 1028); Rigdon v. Barfield, 194 Ga. 77 (5) ( 20 S.E.2d 587). This is a defense peculiarly applicable to equitable suits and has no relevancy to the case at bar which is an action at law. See Code § 3-712; Louther v. Tift, 20 Ga. App. 309 ( 93 S.E. 70); City of Albany v. Mitchell, 81 Ga. App. 408 (2) ( 59 S.E.2d 37); Fox v. Lofton, 185 Ga. 456 (1) ( 195 S.E. 573); Wood v. City Board of Plumbing Examiners, 192 Ga. 415 ( 15 S.E.2d 486); Fletcher v. Gillespie, 201 Ga. 377 (2) ( 40 S.E.2d 45).
The other motions of the plaintiff in regard to the answer are not meritorious for the same reason as stated above in Division 2. We find no other part of defendant's answer or defenses to be vague, indefinite, ambiguous, redundant, irrelevant, immaterial and impertinent. Code Ann. § 81A-112 (e) (f) (Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106).
For the reasons stated in this opinion the lower court must re-instate the case for further consideration in light of the various rulings made.
Judgment reversed in part; affirmed in part. Hall, P. J., and Deen J., concur.