"In an action for specific performance of a contract to convey realty, the consideration must either be expressly stated by the writing itself or it must furnish a key by which the amount of the purchase price can be ascertained." Sturdivant v. Walker, 202 Ga. 585 ( 43 S.E.2d 527). Under the foregoing rule, the contract in the present case is not lacking in the degree of certainty required as to the consideration to be paid.
J. T. Jones and J. C. Canup brought an equitable petition against S. M. Carroll, in which it was alleged: On October 27, 1947, the petitioners and the defendant entered into a written lease and option to purchase, a copy of the instrument being attached and made a part of the petition. The option provision of the contract is as follows: "Lessor hereby grants Lessee an option to purchase the entire building in which the rented premises are located at any time within a period of two years from the date hereof at and for a price not to exceed $8500. The price of the said property to be determined by an appraisal to be made by representatives of the Atlanta Real Estate Board, but not to exceed the figure named above." The terms of the lease and option contract were fair, just, and in good conscience. The petitioners entered into possession of the premises described in the lease as provided therein, and have made promptly all payments of rent required, which the defendant has accepted from the petitioners. The description contained in the lease and option contract is not a complete and exact description of the premises which were mutually agreed upon by the parties. Due to mutual inadvertence, mistake of fact, and lack of understanding of the legal effect and significance of the description, the parties omitted from the contract a full, complete, and exact legal description of the property. A corrected description is set forth, and this description covers the property which was mutually agreed upon between the parties, and which was the property placed in the possession of the petitioners. The petitioners have continued in the premises, and have built up a very profitable and voluminous business as the result of leasing the property and purchasing from the defendant personal equipment and the good will of the business. On May 21 and May 28, 1949, application was made by the petitioners to the Atlanta Real Estate Board, requesting appraisal of the described premises. Information was furnished to representatives of the Atlanta Real Estate Board and appraisal was made on June 10, 1949. A certified report of the appraisal was given to the petitioners, which was as follows: "Land, $1500; improvements, $3750; Total, $5250." A copy of the appraisal is attached and made a part of the petition. On June 22, 1949, the petitioners gave notice in writing to the defendant of their intention to exercise the purchase option, the price tendered being $5250. The defendant advised the petitioners that he would not sell the property at this price. On July 9, 1949, the petitioners unconditionally tendered to the defendant $5250 in cash as the purchase-price of the premises under the option contract. The defendant refused to accept the tender and stated that he would not complete the transaction until forced to do so. The petitioners advised the defendant that their tender was continuing, and made demand and request of him that he perform his contract. The petitioners have fully performed all of their part of the lease and option agreement, and stand ready and willing to do all required of them. The petitioners now are, in equity, owners of the property. They have no full, complete, and adequate remedy at law and can not require performance of their contract by the defendant unless a court of equity will enforce performance. On October 27, 1947, the date of the execution of the lease and option contract, the premises were of the value of $5250, and as of May, 1949, the date the petitioners advised the defendant that they were ready to exercise the option and purchase the property, the property was of the value of $5250.
The prayers were: for process; that the lease and option contract be reformed to describe the property in stated language; that the defendant be required to perform the contract and convey the property; that the court mold its decree in equity, requiring specific performance of the contract of purchase; that the defendant be restrained and enjoined from alienating the title to the property pending the final determination of the action; and for other and further relief.
The defendant filed general and special demurrers, which were overruled. The exception is to the overruling of the demurrers.
HEAD, Justice.
The plaintiff in error contends that the contract in this case is lacking in definiteness and certainty as to the consideration to be paid, and that specific performance of the contract can not, therefore, be decreed. Counsel for the plaintiff in error has cited decisions by this court and from foreign jurisdictions which hold that, where a contract is lacking in clearness and certainty as to any of its essential parts, specific performance will be denied. It is a well-established general principle of law that, in order for a court to decree specific performance of a contract, it must be clear, distinct, and definite in all of its terms. 49 Am. Jur., 34, § 22; Shropshire v. Rainey, 150 Ga. 566 (2) ( 104 S.E. 414); Saye v. Adams Loan Investment Co., 173 Ga. 24 ( 159 S.E. 575); Huggins v. Meriweather, 177 Ga. 461 ( 170 S.E. 483); Brogdon v. Hogan, 189 Ga. 244 ( 5 S.E.2d 657).
The rule governing actions for specific performance was stated in Shropshire v. Rainey, supra, as follows: "Specific performance is not a remedy which either party can demand as a matter of absolute right, and will not in any given case be granted unless strictly equitable and just. Mere inadequacy of price may justify a court in refusing to decree a specific performance of a contract of bargain and sale; so also may any other fact showing. the contract to be unfair, or unjust, or against good conscience. And in order to authorize specific performance of a contract, its terms must be clear, distinct, and definite. A petition for specific performance, which fails to allege a case authorizing the relief sought under the application of the above-stated rules, is subject to demurrer." This rule has been cited and approved a number of times.
No decision has been brought to our attention, and the writer has been unable to find a Georgia case in point on its facts with the present case. In Muller v. Cooper, 165 Ga. 439, 441 ( 141 S.E. 300), in an action for specific performance of a contract, it was said that the consideration need not be expressly stated if the contract furnishes a key whereby the amount of the purchase-price could be ascertained. In support of this rule, decisions from other jurisdictions are cited, which, upon examination, appear generally to support the rule stated. The decision in the Muller case was by a divided bench, and would not, therefore, be binding as authority. However, the rule was restated and applied by this court in Sturdivant v. Walker, 202 Ga. 585, which latter decision was by a full bench.
In the present case, every detail of the contract is clear, definite, and distinct. The parties agreed that, should the lessees elect to exercise their option, they would pay, and the lessor would accept, an amount as the value of the property to be determined on an appraisal by the Atlanta Real Estate Board. The petition alleges that such an appraisal was made, and that the board fixed the value at a stated price, which was the full, fair market value of the property. The petition alleged an unconditional tender of the appraised value in cash, and a refusal to accept the tender. Whether or not the appraisal was fairly and impartially made is a question of fact for determination by a jury.
This is not an attempt to change or vary the terms of a written instrument by parol evidence. Parol evidence would be admissible to show compliance with the terms of the contract by the lessees. The fact that the contracting parties stipulated a maximum price which could be required of the lessees, should they elect to exercise their option to purchase, does not make the contract uncertain. This court is not concerned with the reasons which prompted the parties to fix a maximum price for the property without fixing a minimum, nor the reasons which prompted the agreement that the price should be the value as determined on appraisal by the Atlanta Real Estate Board. The contract so stipulates, and the petition alleges compliance as to time, appraisal, and tender. The plaintiff in error, in the absence of a showing that the price as fixed by the board is unjust, unfair, or unreasonable, is bound by his contract. The court did not err in overruling the general demurrers.
The bill of exceptions assigns error on the overruling of certain special demurrers. The grounds of special demurrer were not insisted upon by counsel for the plaintiff in error in his brief. At the conclusion of the brief he requested additional time to file a supplemental brief with reference to the grounds of special demurrer. The additional time was granted, but the supplemental brief has not been filed. We therefore conclude that the plaintiff in error has abandoned the assignment of error with reference to the rulings on special demurrer.
Judgment affirmed. All the Justices concur.