KITE v. VICKERY et al.; et vice versa

Supreme Court of Georgia1922-04-14No. No. 2989, 2990

153 Ga. 301

Summary · law.co

Holding. The court reversed the judgment granting a nonsuit because the petition stated a valid cause of action and the evidence sufficiently proved it; the purchaser's tender of full payment, when unconditionally refused by the vendor, constituted compliance with the bond's terms, and the vendor could not retain partial payments already received without restoring them less any legitimate damages.

A purchaser bought the rights of original buyers under a bond for title agreement and tendered full payment of the initial note on its due date in the vendor's presence. The vendor rejected the tender outright, stating an unwillingness to honor the bond's terms rather than disputing the amount, manner, or timing of payment. The trial court granted a nonsuit in favor of the vendor, finding insufficient evidence to support the purchaser's claims.

The court reversed, holding that the purchaser had established a valid cause of action with sufficient evidence. The court found that a valid tender of full payment, when absolutely rejected by the vendor, satisfied the purchaser's obligations under the bond. Because the vendor had already received partial payments totaling at least $182–$325 and the bond contained no forfeiture clause, the vendor could not simply keep those amounts while rescinding the contract. Under established law, if a vendor elects to rescind, it must restore payments received minus only an amount necessary to prevent actual loss from the purchaser's non-performance.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a valid tender of payment, when absolutely rejected, satisfies a purchaser's obligations under a bond for title
Whether a vendor can rescind a bond for title while retaining partial payments without restitution
Whether time is of the essence when a vendor's refusal is based on unwillingness to perform rather than defective tender

Procedural posture

The trial court granted a nonsuit in favor of the defendants-vendors; the purchaser appealed on the main bill of exceptions, and the vendors filed a cross bill.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Gilbert, J.

The petition set out a cause of action, and the evidence was sufficient to prove the case substantially as laid. Therefore it necessarily follows that the court erred in granting a nonsuit. Vickery v. Swicord, 151 Ga. 145 (106 S. E. 92). The defendants, Yickery et al., contend that under the terms of the bond, if the purchase-money notes were not paid at the time specified, the vendor had the right to rescind the trade; citing McDaniel v. Gray, 69 Ga. 433, and other later cases to the same purport. They point out that the vendors were still occupying the land in question, never having physically removed therefrom; and therefore contend, that, time being of the essence of the contract, the vendors, ‘ upon failure of the purchaser to pay, might elect to pursue either one of the three remedies: first, to reduce the purchase-money notes to judgment, file a deed, and sell the land; or, second, bring ejectment; or, third, rescind the trade and hold possession of the land. The obstacle to the application of either of these remedies is readily seen by reference to the facts. The court having granted a nonsuit, the defendants, of course, introduced no evidence. The plaintiff proved the purchase of the rights of the original vendees in the bond for title previously to the maturity of the first purchase-money note, and on the day that such note matured, in the presence of one of the original vendees, tendered to the vendor the full amount due, which the vendor refused to accept. The refusal, under the evidence, was not placed upon any dispute as to the amount tendered, the manner of the tender, or other similar circumstances. It was placed upon the absolute refusal of the vendor to abide by the terms of the bond for title. It does not matter, therefore, whether the actual money in legal tender was handed to or shown to the vendor. Under such circumstances it is not necessary to consider whether time is of the essence of the contract as stated in the bond for title. The tender and its absolute rejection was equivalent to a compliance with the terms of the bond. The answer of the defendants admitted that Yickery had received $182 in cash at the time of the execution of the bond; the bond itself acknowledges receipt of $325, which was due to be paid on the day the bond was executed. There was no evidence contradicting these facts; nor was there any evidence that the vendor elected to rescind the contract because the entire $325 was not paid in cash, nor that there was any return of the amount received on the purchase-price. As stated in the case of McDaniel v. Gray, supra, the vendors should restore to tlie purchaser tbe amount of the purchase-money paid, less such an amount as will prevent actual loss to them by reason of the non-performance of the contract on the part of the purchaser. The bond for title contains no provision authorizing the vendor to declare the amount received’ by him as part payment forfeited for a failure to make such payments. The general principle is that “where the parties themselves have not agreed and prescribed the right of rescission and the circumstances under which it is to be exercised, restoration must be made/’ Applying these principles to the facts of the case, the court erred in granting a nonsuit; and the judgment must be reversed on the main bill of exceptions. Judgment is affirmed on the cross bill.

All the Justices concur.