Opinion
41522.
SUBMITTED SEPTEMBER 8, 1965.
DECIDED OCTOBER 15, 1965.
Breach of option contract. Fulton Civil Court. Before Judge Camp.
Thomas A. Travis, Jr., Ralph Spain, for plaintiff in error.
1. "The unconditional notice by the holder of a written option to purchase land, which is supported by a valuable consideration, to the other party, that he has elected to purchase the property at the price and upon the terms stated in the option contract, converts the option contract into a contract of sale which is enforceable by the optionee against the optionor. The option, optionor, and optionee are metamorphosed into a contract of sale, vendor, and vendee." Chatham Amusement Co. v. Perry, 216 Ga. 445, 446 (2) ( 117 S.E.2d 320), and cit.
2. "An option to purchase can be exercised without the payment of the purchase price, or the tender thereof, unless the option contract provides for such payment as a condition precedent to the exercise of the option." Snead v. Wood, 24 Ga. App. 210 (1a) ( 100 S.E. 714). "On the sale of land, in the absence of express agreement, the payment of the purchase money and the delivery of the title deed are concurrent acts." Emery v. Atlanta Real Estate Exchange, 88 Ga. 321, 327 ( 14 S.E. 556).
3. Where a vendee sues to recover damages for an alleged breach of contract by the vendor by refusing to make conveyance, the general rule is that a prerequisite to a recovery therefor is a tender of the purchase money. Such tender is waived, however, by the vendor's proclaiming, by conduct or declaration, that, if a tender should be made, acceptance would be refused. Emery v. Atlanta Real Estate Exchange, 88 Ga. 321, 327, supra; Smith v. Tatum, 140 Ga. 719 (2) ( 79 S.E. 775); Fraser v. Jarrett, 153 Ga. 441, 451 (3) ( 112 S.E. 487).
4. As against general demurrer, the instant petition states a cause of action for breach of the written option contract in accordance with the foregoing principles. The only condition of the plaintiff's written notice of election to purchase was as to the date of the purchase, which was ten days after the date of the notice and this was as stipulated in the contract. The provision that the vendor was to execute the deed upon the payment of the purchase money in cash was not a condition precedent to the vendor's obligation to perform, so as to require a tender of the purchase money by the vendee within the ten-day period, but merely contemplated payment and delivery of the deed as concurrent acts, such as is customarily done in the usual course of such transactions. The notice given by the plaintiff was sufficient to place the burden on the defendant of responding thereto and making the necessary arrangements for the sale within the ten-day period, the failure to do which resulted in a breach of the contract. The defendant waived a tender of the purchase money prior to the bringing of the action by giving notice of intention not to honor the contract. The court erred in sustaining the general demurrer to the petition.
Judgment reversed. Jordan and Deen, JJ., concur.
SUBMITTED SEPTEMBER 8, 1965 — DECIDED OCTOBER 15, 1965.
Mrs. Amy N. Pritchett brought an action against Mrs. Margaret Dodd to recover damages for an alleged breach of a written option to purchase land, which option contained the following terms: "8. In order to induce Second Party to lease the afore-described property, and in consideration of one dollar ($1.00) in hand paid, the receipt and sufficiency of which is hereby acknowledged; and for other considerations, First Party agrees that at any time during the term of this Lease, Second Party may purchase the aforedescribed property for the sum of twenty-six thousand dollars ($26,000.00). The First Party agrees to execute a deed, transferring title to the aforedescribed property, to Second Party, upon the payment of twenty-six thousand dollars ($26,000.00) in cash, the said Deed to transfer title free and clear of all liens and incumbrances. The agent's commission of 5% of the selling price is to be paid by buyer at consummation of sale. 9. First Party agrees to execute the aforementioned Deed and transfer of fee simple title to Second Party within ten (10) days from the date Second Party gives notice in writing to First Party of Second Party's intention to purchase the said property." It is alleged that plaintiff's attorney wrote the defendant a letter dated December 21, 1964, which stated as follows: "Under the provision of the Lease-Purchase Contract signed by and between you and Amy N. Pritchett on June 3, 1964, my client, Mrs. Amy N. Pritchett has leased the property since December 1, 1964. Under the terms of the Contract my client was given the option to purchase the said property at any time for the sum of Twenty-Six Thousand Dollars ($26,000.00). Please be advised that Mrs. Pritchett does desire to exercise this option and purchase the property as of December 31, 1964. It will be appreciated if you will contact me or have your agent contact me immediately so that we can make arrangements for the execution of a deed and other particulars of the closing." In addition to the above, it was alleged that the term of the lease was five years, that the plaintiff had incurred various alleged expenses in procuring a loan and checking the title to the property, and that, on January 6, 1965, after said expenses had been incurred, the defendant notified the plaintiff's attorney by telephone that she did not intend to honor the contract. The defendant filed general and special demurrers to the petition. The court sustained the general demurrer and did not rule on the special demurrers. To the judgment of the court sustaining the general demurrer the plaintiff excepts.