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KINGSDALE APARTMENTS, INC. v. BOARD OF LIGHTS & WATERWORKS OF THE CITY OF MARIETTA.
22027.
Specific performance, etc. Cobb Superior Court. Before Judge Manning.
MOBLEY, Justice.
The petition was prematurely brought for the reasons given.
Plaintiff Kingsdale Apartments, Inc. by letter in formed defendant Board of Lights & Waterworks of the City of Marietta of its intent to construct multiple unit apartment dwellings on a certain tract of land adjacent to the city limits of Marietta and stated that it desired to obtain the services of defendant including electric power, sewage disposal, and water facilities. Plaintiff stated therein that "it is our proposal to annex the area, in stages as it is developed, into the City of Marietta as construction is completed." Defendant by resolution agreed to furnish those services to the property "under the conditions set out in said request." Defendant thereafter by resolution decided to abstain from extending the utility services to the property pending a recommendation from the Mayor & Council of Marietta concerning the same. Thereupon plaintiff brought this petition seeking specific performance of the agreement and an injunction against the breach of the agreement or damages. The trial court dismissed the petition upon defendant's motion.
We need not determine at this juncture whether or not defendant is required to furnish plaintiff the services by virtue of an enforceable contract, an estoppel, or an ordinance of the City of Marietta, because the record shows that this petition was prematurely brought. Plaintiff's proposal was to consent to the annexation of areas of the total tract in stages as they were developed and construction completed. The defendant accepted this proposal, thus agreeing to furnish services to each component area as it was developed and construction was completed. Plaintiff does not allege that it has developed any area and completed construction thereon or that it is time for defendant to perform. Instead, plaintiff seeks to establish defendant's repudiation of the agreement by alleging that defendant has by resolution decided to abstain from extending the utility services to the property pending a recommendation of the Mayor & Council of Marietta. Based on that alleged repudiation, plaintiff seeks specific performance of the alleged agreement, injunction against breach of that agreement by defendant and, in the alternative to the prayer for injunctive relief, a judgment for damages.
An injunction against refusing performance is in effect a decree of specific performance. Lowell Machine Shop v. Atlanta Cotton Factory Co., 60 Ga. 233 (2).
Further, the resolution of defendant to abstain from extending the utility services pending a recommendation from the Mayor & Council of Marietta is not such a repudiation as will provide the basis for an action for damages for an anticipatory breach. Smith v. Georgia Loan &c. Co., 113 Ga. 975 (39 SE 410); Oklahoma Vinegar Co. v. Carter & Ford, 116 Ga. 140 (2) (42 SE 378, 59 LRA 122, 94 ASR 112); Anderson v. Kirby, 125 Ga. 62 (2) (54 SE 197, 114 ASR 185, 5 AC 103); Ford & Co. v. Lawson, 133 Ga. 237 (5) (65 SE 444). The petition was therefore prematurely brought and the trial court correctly dismissed it upon motion of the defendant.
Judgment affirmed. All the Justices concur.
Sam J. Welch, Frank D. Holcomb, Holcomb & McDuff, contra.
Nall, Miller, Cadenhead & Dennis, Grubbs & Prosser, C. Henry Freas, Jr., for plaintiff in error.
ARGUED MAY 13, 1963 -- DECIDED MAY 29, 1963.
Friday May 22 22:22 EDT


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