1. The trial court erred in failing to instruct the jury on specific performance, and under what circumstances specific performance will be decreed. Other assignments of error in the special grounds of the motion for new trial are without merit.
3. The defendant's assignment of error on the overruling of his motion to dismiss the petition was presented too late for consideration of the question made.
Willie E. Pearson filed a petition against Vernard E. George for the specific performance of an option to purchase land, and in substance alleged: On October 28, 1940, he entered into a lease contract with the defendant for a period of twelve years, beginning December 1, 1940, and ending November 30, 1952, for described lands. (A copy of the written agreement was attached to his petition as an exhibit, and made a part thereof.) All of the rental stipulated under the lease agreement, including that for the year 1952, has been paid to the defendant. It is provided in paragraph 8 of the lease as follows: "As a part of the consideration moving to the execution of this contract the Party of the Second Part; his heirs or assigns, shall have and are hereby given the right, privilege and option to buy the above described property at the expiration of this lease agreement at and for the sum and price of five thousand ($5,000.00) dollars to be paid in cash or upon such terms as may be then agreed upon by the parties at interest. In the event the Party of the Second Part elects to exercise this option, he must give written notice thereof on or by November 15th, 1952." On September 12, 1952, the plaintiff notified the defendant by registered mail that he wanted to comply with the provisions of paragraph 8, and to pay the sum of $5000 in cash. On September 23, the defendant met the plaintiff, his attorney, and Mr. Clifford Avera, president of the bank in Roberta, at the Dempsey Hotel in Macon, and, in the presence of the persons named, the plaintiff tendered to the defendant $5000 in cash. The defendant refused to accept the money, and refused to comply with the option provision. Again, on October 13, the plaintiff called on the defendant for compliance with the contract, by having his attorney mail to the defendant a copy of the letter attached to his petition as an exhibit. The defendant still refuses to comply with the option provision of the contract. It is necessary that the land be prepared for farming operations in 1953. The plaintiff has expended considerable money and work in the preparation of the land for farming activities, and he is entitled to specific performance of the contract and agreement of October 28, 1940. He prayed for process; for specific performance of the option provision of the contract; that the defendant, his agents and employees, be restrained from entering upon the property or seeking to regain possession thereof, or in any way interfering with his possession; and for other relief.
The defendant filed an answer, in which he admitted the execution of the contract, and that it contained the option provision set forth as paragraph 8. He further admitted receiving the notice by registered mail that the plaintiff desired to purchase the land pursuant to the option provision; that he met the plaintiff as alleged; and that the plaintiff again, on October 13, called on him for compliance with the contract. He denied that all of the rent under the lease agreement had been paid, and denied that he should be enjoined as prayed. He admitted that he refused to accept the money tendered to him at the Dempsey Hotel in Macon. He alleged: The plaintiff failed to pay the annual rental on the date of October 1, 1949, and was delinquent for a period of more than thirty days. The defendant elected to terminate the lease contract under the provisions of paragraph 2. By definite and unequivocal acts, he notified the plaintiff that he had exercised the right to terminate the option provision of the contract. By letter addressed to the plaintiff at Roberta, and sent by registered United States mail, and bearing sufficient postage to transmit the letter by registered mail, he notified the plaintiff that he was terminating the lease and option contract. On or about November 15, 1949, he contacted the plaintiff in person and reasserted and reaffirmed his termination of the lease contract between the parties; and on that date the parties entered into a new oral contract relative to the leasing of the land. The parties orally agreed that the plaintiff could stay on the land for the same rent, on a year-to-year basis, until November 30, 1952; and the plaintiff was allowed to remain on the premises solely by virtue of the oral contract between the parties. The plaintiff has removed certain peach trees from the land, and the defendant has been damaged in the sum of $1950. The defendant has no adequate remedy to prevent the plaintiff from cutting trees or otherwise causing, irreparable damage, and he can be protected only by injunction, prohibiting the plaintiff from cutting any of the timber or damaging any of the premises. He prayed that the prayers of the plaintiff's petition be denied; that he recover damages in the sum of $1950; that the plaintiff be enjoined from cutting timber or damaging the realty; and for other relief.
On the trial, the plaintiff introduced the duly executed and recorded contract of the parties, which had beef admitted by the defendant, and introduced evidence to prove every material allegation of his petition. Mr. Avera, the president of the bank, testified as to the tender of the $5000 in cash. He further testified that the value of the land at the time of the execution of the contract did not exceed $5000, that the value of land had increased, and that the property would be worth more at the present time. The plaintiff denied having received any notice from the defendant, by mail or otherwise, in 1949, that the defendant claimed to have the right to terminate the lease and option contract, and denied that there had been any oral agreement as set up by the defendant.
The defendant testified that he mailed, by registered mail, a letter, copy of which was introduced in evidence, to the plaintiff at Roberta, R. F. D., and it was contended that he received a return card signed by W. L. Parker. He introduced the testimony of his brother, to show that mail was delivered to the store of W. L. Parker, some several miles distance from the residence of the plaintiff, and that the plaintiff sometimes received mail at the store of W. L. Parker. This witness, Cliff George, testified in part as follows: "I have seen Mr. Pearson get some [mail] in there a long time ago. I have been in there when the mailman came. I have never seen Mr. Pearson go in the store since Mr. Parker has been running that store and pick up mail or anything else. I don't think I have seen Will Buck (Pearson) in there since Parker was in there. That has been twelve years."
The defendant testified in regard to a new oral contract, as follows: "Me and Mr. Pearson re-entered an agreement that he could stay for the remaining three years of the twelve years from a year-to-year basis and harvest the peaches only. He realized and I realized at that time when we were talking that that was a new contract, and to substantiate this contract he says, 'I will give you this check for the unpaid rent to build a new contract,' and we went on that contract. That was our understanding and my understanding of it. We re-entered a new contract for the three remaining years, only for a year-to-year basis."
The jury returned a verdict for the defendant. The plaintiff's motion for new trial, as amended, was overruled, and he excepts to that judgment. The defendant, by cross-bill, assigns error on the overruling of an oral motion to dismiss the petition.
The parties will be referred to in the opinion as they appeared in the trial court.
1. In ground 1 of the amended motion for new trial, the plaintiff assigns as error the following extract from a recharge by the court, at the request of the jury, as follows: "Gentlemen of the jury, the court charges you that, if part of the contract were canceled, it would all be canceled. The court construes it as a single contract."
The plaintiff contends that, under paragraph 8 of the written contract, the option agreement was in no way dependent upon the agreement for the lease of the lands. This contention of the plaintiff can not be sustained. Crawford v. Smith, 151 Ga. 18 (105 S. E. 477).
In ground 2 certain statements of the court, in a colloquy between the court and the jury, wherein the court restated certain contentions of the defendant, are attacked as error. Under the record, the court did not misconstrue or misstate the contentions of the defendant. The court might have instructed the jury that, in so far as the defendant relied upon an oral contract entered into subsequently to the written contract, the burden would be upon the defendant to establish the oral contract. There was no request to charge on the burden of proof as to the alleged oral contract. It has been held many times that a correct charge is not erroneous solely because the court did not, in connection therewith, give in charge to the jury some other correct principle of law.
In ground 3, it is, contended that the court erroneously charged the jury that a default in one of the payments of rent under the lease contract would give the defendant the right to cancel the option provision of the contract. The contract was entire, and not severable. A default in the payment of rent for the period of time provided in the contract would authorize a termination of the" option provision of the contract, as well as the lease agreement, by the defendant (lessor).
In ground 4, it is contended that the court, in the absence of a written request, should have given in charge to the jury, in substance, the Code, 37-801 and 37-802, with reference to the specific performance of contracts. The plaintiff was not relying upon a parol contract for land, and 37-802 was not germane to any issue in the case. The court, however, did not charge the jury at all on specific performance, nor under what circumstances specific performance would be decreed. The failure of the court to give any instructions to the jury on specific performance (see Silverman v. Alday, 200 Ga. 711, 715, 38 S. E. 2d, 419; Matthews v. Blanos, 201 Ga. 549 (3b), 40 S. E. 2d, 715), left the jury without any legal basis for arriving at a verdict on the substantial issue of the case. The court's failure to give any charge on specific performance requires the grant of a new trial.
In ground 5, error is asserted in that the contentions of the defendant "were set forth in said charge explicitly, while the law which should have applied in this case was not given to the jury by the court." The court did charge some of the applicable principles of law, and it is not shown by this ground what principles of law it is contended should have been given in charge.
In ground 6, it is, contended that the court erred in not charging the jury that, if a default occurred and was caused by the defendant's acts in making himself unavailable to receive payment of the rent due, or his whereabouts unknown, he could not take advantage of the default. Under the provisions of the written contract, the plaintiff might have paid any annual instalment in compliance with the contract without making the payment directly to the defendant. This being true, the plaintiff could not rely on the unavailability of the defendant for the purpose of payment, as a defense for his failure to make an alleged payment on time.
2. "Where a contract for the sale of land is in writing--is certain--and fair in all its parts--is for an adequate consideration, and capable of being performed, it is just as much a matter of course for a court of equity to decree a specific performance of it as it is for a court of law to give damages for it in other cases." Chance v. Beall, 20 Ga. 142. See also Clark v. Cagle, 141 Ga. 703 (82 S. E. 21); Funk v. Browne & Leacy, 145 Ga. 828 (90 S. E. 64); Tolbert v. Short, 150 Ga. 413 (104 S. E. 245). The adequacy of consideration of a contract is to be determined as of the time of its execution. Matthew's v. Blanos, supra; Manning v. Carroll, 206 Ga. 158, 160 (7) (56 S. E. 2d, 278).
Under the foregoing rules, the plaintiff fully established, by his evidence, his right to specific performance of the option provision of the contract. The defendant, however, relied upon an alleged breach as to the payment of the annual rental in 1949, and a subsequent oral contract between the parties.
The undisputed evidence showed that the letter alleged to have been written by the defendant to the plaintiff, purporting to cancel the option provision of the written contract, if mailed by the defendant as contended, was improperly addressed to Roberta, Georgia, R. F. D., and that the plaintiff's mailing address was Fort Valley, Georgia, R. F. D. Under the facts of this case, the burden was on the defendant to establish delivery of the alleged letter. Jones v. Methvin, 97 Ga. 449, 451 (25 S. E. 318). The defendant's contention that W. L. Parker received mail for the plaintiff was not sustained by any evidence. The plaintiff denied receiving the alleged letter and denied that there was any oral agreement subsequent to the written contract.
The oral agreement alleged by the defendant, if made as contended, was void. It was insufficient to constitute a complete contract; it was void for uncertainty. There was no description of the premises upon which the peach trees were located, and under the defendant's evidence this was the only land that the plaintiff was to remain in possession of.
In McCranie v. Rigsby, 172 Ga. 860, 861 (159 S. E. 233), it was said in part: "If, in the circumstances shown by the evidence, failure to pay the August rent on or before the tenth day of that month would be such breach of the contract as would ordinarily defeat the right to specific performance, the failure of the lessor to repudiate the contract upon that ground promptly, and the subsequent acceptance of the monthly rentals under the contract without complaint, would as matter of law constitute a waiver, and the breach would not be ground for refusal to make a deed, where, within the time specified in the contract, the lessee notified the lessor of his intention to exercise his option to purchase and tendered the stipulated purchase price."
The rule stated in the McCranie case is applicable here. The defendant admitted in his testimony that he had received all payments of annual rent. If he was relying upon a breach of the written contract, and upon a subsequent oral agreement, then he was under the duty and burden to make this fact known at the time of the tender of the $5000 to him by the plaintiff in the Dempsey Hotel in Macon. If such agreement or oral contract was made freely and voluntarily by the plaintiff, and if the plaintiff had acquiesced in the alleged termination of the option provision of the written contract, it would then amount to fraud for the plaintiff to insist that he had a right to have the option provision of the written contract specifically performed.
"Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he can not avoid or rescind such contract." Gibson v. Alford, 161 Ga. 672, 673 (5) (132 S. E. 2d, 243). Forfeitures of rights under valid legal contracts are not favored under the law. Our courts generally are quick to seize upon any waiver of a forfeiture, the rule being that the right to rescind for any breach must be asserted promptly, and a waiver of a breach or forfeiture can not be recalled. 17 C. J. S. 897, 409; 17 C. J. S. 9-17, 433; 12 Am. Jur. 1016, 436; McDaniel v. Mallary Bros. Machinery Co., 6 Ga. App. 848 (66 S. E. 146); Williams v. Empire Mutual &c. Ins. Co., 8 Ga. App. 303, 304 (7) (68 S. E. 1082); Farmers Mutual Co-operative Fire Ins. Co. v. Kilgore, 39 Ga. App. 528 (147 S. E. 725); Grolier Society v. Freeman, 45 Ga. App. 465 (165 S. E. 290); Cartwright v. Bartholomew, 83 Ga. App. 503, 507 (64 S. E. 2d, 323).
The acts and conduct of the defendant, as revealed by his testimony, were insufficient under the law to constitute a defense to the valid written contract, and the court erred in overruling the general grounds of the motion for new trial.
3. Defects in pleading may be taken advantage of by an oral motion to dismiss in the nature of a general demurrer. Code, 81-302; Kelly v. Strouse & Bros., 116 Ga. 872 (43 S. E. 280); Darley v. Starr, 150 Ga. 88 (102 S. E. 819).
In the present case the verdict of the jury was returned on January 29, 1953. No exceptions pendente lite were filed to the ruling of the court overruling the defendant's motion to dismiss the petition, and his cross-bill of exceptions was presented on May 5, 1953. An assignment of error on that ruling is, therefore, too late for consideration on review. Taylor v. Cleghorn Bros., 176 Ga. 778
(168 S. E. 773); Bowers v. Bowers, 208 Ga. 85
(65 S. E. 2d, 153).
Judgment reversed on the main bill of exceptions; cross-bill of exceptions dismissed. All the Justices concur, except Atkinson, P. J., not participating.