Griffin v. Lester , 29 Ga. App. 103 ( 1922 )

Jenkins, P. J.

The petition in effect alleged: The plaintiff, Griffin, on December 12, 1919, bought from the defendant, Lester, through the latter’s agent, Montgomery, certain property, described as 123 acres, more or less, the contract of purchase being evidenced by the following writing: “December 12, 1919. Deceived of J. 0. Griffin the sum of $500 as part payment that farm situated on Magnolia Road about 3 miles south of Thomas-ville, Ga., and known originally as the A. F. Prevatt, now the R. F. Lester Place, fully described in a deed from R. E. Lester to R. E. Lester Jr., recorded in Book 3 G, page 121, Clerk’s office S. C., containing 123 acres more or less, the consideration being $50 per acre, balance purchase price due upon January 5, 1920, when deed is to be delivered. J. S. Montgomery, Agt.” After receiving the $500 stated in this memorandum, Montgomery sent a deed to Lester, the owner, to sign; but Lester declined, writing to the agent as follows: “ Dialville, Tex., Dec. 17, 1919. Mr. J. S. Montgomery, Thomasville, Ga. Your letter with enclosure of deed to hand. I am certainly glad to know that you have a purchaser. I notice you have deed made out for 123 acres, while the deed on record calls for 123 acres more or less. According to Mr. Parker’s survey, there is 124.97 or practically 125 acres. I am willing to sell the place at stipulated acreage without more or less clause. I purchased few weeks since wire for line fence between Cochrans and myself, hired Mr. Darby to put it up. I would expect Mr. Griffin to pay for wire and labor of putting up same as it is recent improvement and undergoing completion. If you will have the place surveyed my expense make out new deed, Mr. Griffin agreeing to pay for wire and expense of putting up same, we will put the deal through on time. Yours sincerely, R. E. Lester.” It was alleged that under this letter nothing was left to be done but determine the exact acreage in accordance with a survey; and that, pending such survey, the plaintiff, by the consent and under the direction of said agent, went into possession of the land and incurred certain alleged expenses therein; that while negotiations were pending as to the exact acreage, the defendant owner ejected plaintiff and his property from the land; that the correct acreage as determined by the county surveyor in the survey was 100 acres, for which the proper price under the contract was $5,000, which plaintiff tendered to the defendant, but which was refused; and that plaintiff is entitled to recover $1,000, the difference between the contract price and the actual value of the land at the time the sale was to be closed, and $159.51 as expenses incurred in preparation for the purchase of and farming on said land. Plaintiff amended the petition as set forth in the 2d headnote. It was further alleged that the plaintiff actually paid to the agent the $500 mentioned in the receipt of December 12, 1919, quoted, and that the plaintiff went into actual possession of the premises on January 1, 1920. While it was alleged that the survey was completed on January 5, 1920, it appears from the 5th paragraph of the petition that the plaintiff was still negotiating with the agent after the result of the survey was known. Hence, the eviction of the plaintiff by the defendant from the premises, which the 6th paragraph alleged occurred while “negotiations were pending as to what was the exact acreage,” cannot be taken as having preceded the alleged ratification made January 28, 1920, of the agent’s alleged trade, as set up by the amendment; so that the allegation in the amendment that the ratification occurred “a few days after petitioner went into possession,” taken with the original petition, will be construed as an allegation that the ratification occurred while the plaintiff' was still in possession under his alleged trade with the agent. The defendant demurred to the petition and the amendment, chiefly upon the grounds that the plaintiff failed to set forth any binding contract between the plaintiff and the alleged agent which could legally be enforced; that no written authority, under seal or otherwise, was shown between the defendant and the alleged agent, authorizing the alleged agent to enter into a written contract for the sale of the land; and that the alleged contract for the sale of land and the alleged ratification were not in writing. The court sustained the demurrers.

It is not necessary to add anything further to the syllabus.

Judgment reversed.

Stephens and Bell, JJ., concur.