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JOLLES v. HOLIDAY BUILDERS, INC. et al.
23553.
Specific performance. Glynn Superior Court. Before Judge Flexer.
COOK, Justice.
The petition failed to state a cause of action for specific performance of a written contract to sell a leasehold interest in land.
The petition of Isaac S. Jones against Holiday Builders, Inc., and James L. Wiggins, as amended, alleged: On February 6, 1966, the petitioner entered into a written contract with Holiday Builders, Inc., wherein the petitioner agreed to purchase, and Holiday Builders, Inc., agreed to sell, a described leasehold interest in real estate, a copy of the contract being attached to the petition. The agreed purchase price was $20,296.20, and $500 of this was paid by the petitioner. The balance was to be paid at the time of closing by the payment of $2,250 in cash and the assumption of a loan of $17,546.20. The contract provided that the petitioner would have 30 days from the date of the execution of the contract to close the sale. After the execution of the contract, the petitioner employed an attorney to investigate the title to the property and this investigation disclosed that the record title is in James U. Wiggins, rather than Holiday Builders, Inc. James U. Wiggins is president of Holiday Builders, Inc., and the contract was executed as follows: "Holiday Builders, Inc., By: James L. Wiggins, Pres." On March 11, 1966, within the 30 days provided in the contract, the petitioner's attorney notified the defendant James L. Wiggins that he had the petitioner's check and the transaction could be closed. James L. Wiggins refused to convey the property, giving as his reason that he had sold it to another party, thereby waiving the necessity for additional tender of the purchase money. The petitioner is ready and willing to perform the contract and pay the purchase money to James L. Wiggins or Holiday Builders, Inc., as provided in the agreement.
The prayers were: that the contract be specifically performed and that James L. Wiggins, acting either for himself or by and through Holiday Builders, Inc., be directed to execute and deliver to the petitioner a deed conveying title to him in accordance with the contract; that both defendants be enjoined from conveying title to the property to others; and for other relief.
The trial judge granted the defendants' renewed oral motion to dismiss the petition as amended, and the appeal is from this order.
The petitioner seeks specific performance on the basis of a written contract executed by Holiday Builders, Inc., by James L. Wiggins, President, and it is asserted that it was Holiday Builders, Inc., that agreed to sell the described property to the petitioner. The petition alleges that the record title to the property is not in Holiday Builders, Inc., but in James L. Wiggins, individually. It is prayed that James L. Wiggins, acting either for himself or by and through Holiday Builders, Inc., be directed to execute and deliver to the petitioner a deed conveying title to him in accordance with the contract.
A court of equity can not decree the specific performance of a contract wherein the purported vendor agrees to sell land which belongs to another. Pryor v. Cureton, 186 Ga. 892, 894 (199 SE 175); Harris v. Porter's Social Club, Inc., 215 Ga. 687 (3) (113 SE2d 134); Morgan v. Maddox, 216 Ga. 810 (120 SE2d 183). Holiday Builders, Inc., could not be required to specifically perform the contract, because, under the allegations of the petition, this corporation does not hold title to the land described in the contract.
James L. Wiggins can not be required to specifically perform a contract made by a corporation of which he is president, even though, in his capacity as an officer of the corporation, he signed the contract. In law, he and the corporation are entirely separate and distinct entities. Waycross Air-Line R. Co. v. Offerman & Western R. Co., 109 Ga. 827, 828 (35 SE 275); Shingler v. Shingler, 184 Ga. 671, 672 (3) (192 SE 824); Independent Gasoline Co. v. Bureau of Unemployment Compensation, 190 Ga. 613, 614 (10 SE2d 58). There is no allegation that the title to the property was conveyed to Wiggins after the contract was executed by the corporation, and there are no allegations of fraud or collusion.
Since the petition shows that neither of the defendants can be required to specifically perform the contract sought to be enforced, the trial judge properly granted the oral motion to dismiss the petition. It is unnecessary to discuss other deficiencies of the petition as an action for specific performance.
Wallace E. Harrell, Bennett, Gilbert, Gilbert & Whittle, for appellees.
Jack T. Griffith, for appellant.
ARGUED JUNE 14, 1966 -- DECIDED JULY 7, 1966.
Friday May 22 20:16 EDT


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