Opinion
35652.
DECIDED MAY 3, 1955.
Action on contract. Before Judge Guess. DeKalb Superior Court. August 30, 1954.
Walter E. Baker, Jr., for plaintiff in error.
Wm. Wilkerson, contra.
1. The motion to dismiss the writ of error is denied.
2-4. Under the facts of this case, where the petitioners sought to rescind a contract of sale made with the defendant, and tendered into court the $800 cash down payment made by the defendant upon execution of the contract of sale, in view of the defendant's refusal to accept the tender prior to the filing of the action, upon a motion to dismiss the action for rescission by the petitioners, they had the right to dismiss the action and withdraw the money tendered into court, and the court did not err in dismissing the action and in permitting the petitioners to withdraw the money tendered into court.
DECIDED MAY 3, 1955.
Mr. and Mrs. J. W. Rister filed a petition in the Superior Court of DeKalb County against George A. Rumph, seeking to rescind a contract for the sale of a house and lot, the plaintiffs being the sellers and the defendant the purchaser. In addition to seeking a rescission the petition prayed for the rental value of the premises, damages to the premises, and attorneys fees. The petition alleged that the defendant agreed that he would purchase a certain house and lot from the petitioners at the price of $12,500; that the defendant paid the petitioners $800 in cash and took possession of the property; that the contract of sale provided that the purchase money would be paid as follows: $800 in cash, $500 in six months from the date of the execution of the contract, and the balance of $11,200 to be paid in monthly notes of $60 each, with interest at 5% each until paid, and the contract provided that such papers as might be legally necessary to carry out the terms of the contract should be executed and delivered to the parties at interest as soon as the validity of the title to the property had been established; that on or about July 10, 1953, the defendant announced that the title to the property was satisfactory; that the petitioners then tendered warranty and security deeds to the defendant for his acceptance and signature, but he refused and continued to refuse to sign any evidence of indebtedness in accordance with the contract, and refused to pay interest as called for by the contract of sale, and refused to deliver possession of the premises on demand; that the petitioners had tendered the defendant the $800 down payment, which he refused; that the property had a reasonable rental value of $100 per month, and had been damaged by the defendant to the extent of $2,000; that the petitioners now hold the $800 down payment to be applied by the court as a credit against the damages due the petitioners by the defendant. The notes and security deed tendered the defendant provided for the acceleration of the maturity of the unpaid notes if there was default in the payment of any note. The defendant filed general and special demurrers to the petition. One special demurrer sought to require the petitioners to tender the $800 down payment into court. By amendment the petitioners alleged that, on or about July 17, 1953, they tendered to the defendant for his signature the note attached to the petition, which the defendant refused to sign on the ground that the contract of sale called for a payment of only $3 interest on each $60 instalment. Paragraph 7-A was added also by amendment as follows: "After vainly endeavoring to work out various solutions by way of compromise, all of which failed, plaintiff thereafter, on August 21, 1953, by their attorneys, again tendered performance to defendant, by letter as follows: `We are ready to deliver a warranty deed to Mr. Rumph and take back a note and security deed from him for the balance owed to date on the property in question in accordance with our interpretation of the written agreement you referred to in your letter, which each of them signed. Our construction being: that Mr. Rumph will pay 5% interest on each note of $60 principal, which would begin with the 1st note of $60.25 and graduate upward to the last, or 186th note amounting to $107.00. The amount of $500 to be paid in 6 months from June 30, 1953, without interest. Acknowledgement of receipt of $800.'" The trial court overruled the defendant's general demurrer to the petition and sustained certain special demurrers. The cross-action for specific performance filed by the defendant was stricken on general demurrer and was not excepted to. The defendant excepted to the judgment overruling his general demurrer, and the petitioners by cross-bill excepted to the sustaining of the special demurrers. The Supreme Court reversed the judgment of the lower court overruling the general demurrer and affirmed the judgment on the special demurrers. Rumph v. Rister, 210 Ga. 679 ( 82 S.E.2d 508). Before the judgment of the Supreme Court was made the judgment of the trial court, petitioners amended their petition by adding a second count, substantially as follows: that petitioners own a certain described house and lot in DeKalb County; that on May 30, 1953, petitioners and defendant agreed that defendant would purchase said property from petitioners at a purchase price of $12,500 plus interest, and defendant paid to petitioners $800 on said agreement; that on June 13, 1953, petitioners and defendant signed a contract of sale on the property, the contract being attached to the petition as an exhibit; that on July 14, 1953, defendant informed petitioners that title search was completed and defendant would complete the purchase on July 17; that, on or about July 17, petitioners met with defendant and his attorney for the purpose of closing the sale; that petitioners were ready, able, and willing to close the sale in accordance with the terms of the contract of sale, but defendant on that date, and at all times thereafter, utterly refused to carry out his contract of purchase, stating that he would not buy at the price stipulated in the contract; that petitioners informed defendant they could not accept less than the contract price, and that, unless defendant closed the contract in accordance with its terms, they would elect to rescind the same; that on July 21, 1953, defendant stated he was agreeable to a rescission of the contract; that on July 27, petitioners offered to return to defendant the total consideration received by them, which was $800; that defendant then refused to accept said sum, refused to vacate the premises, refused to effect an amicable rescission, and continued to refuse to purchase the subject property at the price stated in the contract of sale; that defendant did not vacate the premises until November 30, 1953, after the filing of an action and an interlocutory hearing; that, when defendant entered the premises, the house was "brand new," had never been occupied, and had a reasonable rental value of $100 per month and a reasonable market value of $12,500; that, at the time defendant vacated said premises, as a result of his possession and usage thereof, it has a reasonable market value of only $10,500, by which facts petitioners have suffered a loss of $2,000 in the depreciated market value of the premises; that by occupying the premises for a six-month period from June 1, 1953, to November 30, 1953, inclusive, the defendant has deprived petitioners of the rental value of the house in the sum of $100 per month, or a total of $600; that defendant entered into the contract of sale in bad faith, knowing at the time of its execution that he did not intend to perform according to its terms, and for the purpose of obtaining possession of the house; that defendant has been stubbornly litigious and caused petitioners trouble and expense in filing and prosecuting this action, for which reason petitioners are entitled to the further sum of $650 as reasonable expenses and attorney fees; that petitioners acknowledge receipt of $800 from defendant, which they have tendered back to him and which he has refused, and petitioners now hold said sum to be applied by this court as a credit against the damages due petitioners by defendant; that petitioners, on October 9, 1953, presented and tendered into the registry of the court a certified check in the amount of $800 representing defendant's sole payment on the purchase price of the property, and petitioners hold said check and the fund represented thereby for the sole use and behoof of the defendant and subject to the direction of the court, and plaintiffs have at all times prior to and during the pendency of this action tendered and do now tender same to defendant, but defendant did refuse the same.
On the same day, May 26, 1954, the defendant filed an unsworn pleading setting out that theretofore he had not been willing to accept the $800 the petitioners had tendered into court, but that he then desired to accept the tender, and he prayed for an order of court directing the clerk to pay the sum over to him. On said pleading by the defendant the court issued a nisi directing petitioners to show cause on June 2, 1954, why the prayers should not be granted. On June 2, 1954, the petitioners' attorney paid the costs in the case and marked the same dismissed on the back of the petition. On August 30, 1954, the trial judge passed an order sustaining the petitioners' motion to dismiss the petition. The defendant excepts to the judgment dismissing the petition. The trial judge made the following two notations on the bill of exceptions: "The said $800 was tendered and given to the court in open court and the court directed plaintiffs' attorneys to hold the fund for the court and returned said fund to said attorneys." "The said $800 was not on said date of hearing and never had been, within the registry of the court, or in the possession of the clerk or judge thereof."
1. The fact that the petitioners in the court below paid the costs and marked the case dismissed on the back of the petition did not deprive the court of jurisdiction to pass on the question raised by the defendant's pleading seeking to have the $800 tendered paid to him, since the pleadings were filed and nisi was issued thereon prior to the time of the effort to dismiss the case. The motion to dismiss the writ of error is denied.
2. The transfer of this case to this court is conclusive as to the jurisdiction of this court. Rumph v. Rister, 211 Ga. 312 ( 85 S.E.2d 768). Under the facts of this case, the fund of $800 tendered into court by the petitioners is considered to have been in the registry of the court just as much as if it had been deposited with the clerk. The attorneys for the petitioners were officers of the court and were directed to hold the money for the court. The order of court dismissing the case and ordering the money returned to the petitioners is the principal matter for consideration.
3. The court did not err in dismissing the action and in permitting the petitioners to take down the money tendered into court. Whatever may be the rule as to the right of a party making a tender into court to withdraw the tender under other circumstances, such a party does have the right of withdrawal where the money is tendered or deposited as a necessary incident to his obtaining affirmative equitable relief. 52 Am. Jur. 248, § 47; 26 R. C. L. 656. In this case it was necessary for the petitioners to put the defendant in the same position he was before the contract was entered into and to do this it was necessary for them to tender into court the amount paid on the purchase price by the defendant, since he had declined the actual tender by the petitioners. Code § 20-907; Lytle v. Scottish American Mortg. Co., 122 Ga. 458, 459 (10) ( 50 S.E. 402); Milam v. Gray, 80 Ga. App. 356 (3) ( 56 S.E.2d 168). If the amendment of the petition after the Supreme Court decision did not meet the court's decision, the action was in effect dismissed by the Supreme Court, in which event the right to withdraw the tender accrued to the benefit of petitioners, as the tender was part and parcel of the action. If the amendment aided the original petition and a cause of action for rescission was set forth, the petitioners had a right to voluntarily dismiss the action and take down the tender. If the second amendment to the petition set forth only a cause of action for damages and rental value, the tender was not essential to such a cause of action and it could be withdrawn, for the reason that it will be presumed, under the facts here, that the tender was made for the purposes of enforcing a rescission and not as a prerequisite to an action for damages.
4. There is only one possible reason we can conceive of why the petitioners might not be permitted to withdraw the tender. These facts are not stated in the statement of the case, as we desired to treat this matter separately. There was a prayer for restraint and injunction against the defendant's interfering with petitioners' possession of the premises. The court granted such a restraining order in default of the posting of a bond by the defendant to cover damages which might be found against him. Being unable or unwilling to post the bond, the defendant surrendered possession of the premises to the petitioners. The defendant procured possession of the premises by the grace and leave of the petitioners before he executed the final papers covering the sale. He was not otherwise entitled to possession, and before he executed the papers the premises were demanded and he refused to deliver possession. The defendant made only one contention as to why he was justified in not signing the papers as insisted on by the petitioners and why he was justified in remaining in possession of the premises, and that contention was that the contract of sale provided that he owed only $3 interest on every instalment note rather than interest on the entire unpaid balances. In the Supreme Court ruling ( Rumph v. Rister, 210 Ga. 679, 82 S.E.2d 508), the court decided that question against the defendant, so he was not left with a leg to stand on so far as his only contention was concerned. The effect of the decision was that the petitioners' action for rescission (and damages) was fatally defective, and that the defendant was not entitled to possession of the property and was not justified in his contention aforesaid. Under these circumstances, it cannot be said that, since the petitioners obtained possession of the premises by virtue of the action, it would be inequitable and unjust to permit them to dismiss their action and withdraw the tender.
The court did not err in dismissing the action on motion of the petitioners and in permitting them to withdraw the $800 tendered into court.
Judgment affirmed. Quillian and Nichols, JJ., concur.