Brogdon v. Hogan
Brogdon v. Hogan
Opinion of the Court
The foundation of the cross-action is an alleged oral contract made by the deceased and the defendants, Avith mutual obligations which Ayere met by defendants, but not performed by the plaintiff’s intestate. Specific performance is an equitable remedy furnished in certain cases. When one party to an executory contract performs, and the other fails to perform, the one in default is liable in damages to the other, and ordinarily this is the remedy afforded by our law for the redress of the wrong. In certain instances, hoAvever, equity Avill decree specific performance of an oral agreement respecting land. When one agrees with an
We do not mean to say that in every such case the party aggrieved will be granted', at his option, specific performance. It is not a.remedy which can be demanded as a matter of absolute right. Shropshire v. Rainey, 150 Ga. 566 (104 S. E. 414); Huggins v. Meriweather, 177 Ga. 461 (170 S. E. 483). In-the character of eases such as the one now under discussion, there are several elements of possible infirmity, if any of which be present, it is fatal to the grant of the relief sought. Mere inadequacy of price may justify a court in refusing to decree specific performance of a contract of bargain and sale. Shropshire v. Rainey, and Huggins v. Meriweather, supra. In order to authorize specific performance, the terms of the contract must be clear, distinct, and definite. Shropshire v. Rainey, supra. The petition must allege the value of the services to be rendered, and the value of the property. Huggins v. Meriweather, supra. These values must be set forth in order to show that the contract which it is sought to enforce is one not unfair, or unjust, or against good conscience; for if it so be, it is fatal to the grant of the relief sought. Potts v. Mathis, 149 Ga. 367 (100 S. E. 110); Shropshire v. Rainey, and Huggins v. Meriweather, supra. The contract, must be precise in its terms. Studer v. Seyer, 69 Ga. 125, 126. There must be a sufficient specification of the items of service, or else the petition is demurrable. Lansdell v. Lansdell, 144 Ga. 571 (87 S. E. 782). The petition in the instant case did not with precision give the terms of the contract, or its date. The value of the services was not alleged, or that of the property sought to be recovered. The services to be performed were alleged in the most general way, not any more particularly than in Potts v. Mathis, and in Lansdell v. Lansdell, which this court said were insufficiently shown. These defects were pointed out by appropriate demurrers. The mere
' Applying to the record before us the principle repeatedly announced by this court in its former rulings, the cross-petition seeking specific performance should have been dismissed. What followed the refusal to dismiss was nugatory, and the assignment of error relating to the refusal to grant a new trial need not be considered. Judgment reversed.
Reference
- Full Case Name
- BROGDON, administrator v. HOGAN
- Cited By
- 1 case
- Status
- Published