1. Where an agreement to execute a lease upon the exercise of an option fixed the date of performance as the date of the exercise of the option, the failure of the defendant to comply with the agreement authorized the optionee to institute a suit for specific performance, without waiting until the date when the lease should become operative, and therefore the petition was not prematurely brought.
2. Since equity will not require a useless formality, it is unnecessary to make a tender where the vendor, by conduct or declaration, proclaims that, if a tender should be made, acceptance would be refused.
3. The petition in this suit was not subject to general demurrer, as contended, because it failed to set out with certainty all of the particulars essential to the execution of the lease contract which the plaintiff was seeking to have specifically performed.
No. 15786. APRIL 19, 1947. Isadore H. Krantz filed in Fulton Superior Court, against Ben Kaplan, a petition which alleged substantially the following: On October 16, 1945, the petitioner and the defendant entered into a written contract under the terms of which the defendant, in consideration of $6500 in hand paid, sold a described five and ten-cent store to the petitioner. The contract contained a stipulation that as a part of the consideration the defendant "conveys to the purchaser an option to lease" described adjoining real estate consisting of a one-story building for a term of three years commencing August 5, 1946, at a rental of $75 a month. It was also provided: "Time is the essence of this contract, and should the purchaser desire to exercise this option, to execute said lease, this option must be exercised within six (6) months from date. It is further agreed that upon the exercise of said option the . . [defendant] and the purchaser shall execute such legal instruments as are necessary to carry out the terms of said lease agreement." On March 21, 1946, within the time provided under the agreement, the petitioner advised the defendant by letter of his exercise of the option. On April 15, 1946, the defendant came to the office of the petitioner's attorney, concerning the preparation of the lease, and was informed that the respective attorneys for the parties should draft the same. However, the defendant requested the petitioner's attorney to prepare the lease, which was done, and on the following day an original and copy of the proposed *Page 195 lease were mailed to the defendant. On May 29 the petitioner again requested the defendant to execute the lease. The petitioner offered to take over the premises and carry out the terms of the contract, but on May 31 the defendant informed the petitioner that he would not lease the premises to him. The lease is a profitable one and irreparable damages are accruing to the petitioner by reason of the defendant's breach of the contract. The petitioner is able and willing to comply with the terms of the contract. The prayers were that process issue and that the defendant be specifically required to perform the lease contract.
The defendant demurred to the petition on the ground that it failed to set forth sufficient facts to entitle the petitioner to the relief prayed for, either at law or in equity. The exception is to a judgment overruling this demurrer. 1. Counsel for the plaintiff in error insist that the general demurrer should have been sustained because the petition for specific performance of the agreement to execute a lease was prematurely brought on June 21, 1946, since the lease was not to commence until August 5, 1946, and that the plaintiff in error would have had the right to change his mind up to the time when the lease was to become operative. Gilleland v. Welch,199 Ga. 341 (34 S.E.2d 517), is cited in support of this contention. In that case, involving specific performance of a contract for the sale of land, it was held that, where performance was not required until a later date as fixed by the agreement, a suit for specific performance was premature when brought without waiting for the date of performance to arrive.
Whether the present suit was prematurely brought depends upon the date of performance as fixed by the sales agreement. While the lease was not to become operative until August 5, 1946, the sales contract granted an option which could be exercised, at any time, not later than six months from the date of the sales contract. Upon the exercise of this option on March 21, 1946, the date of performance became fixed as of that date, and the purchaser obtained a present right to have executed the lease provided for in *Page 196 the contract, although the lease would not become operative until August 5, 1946. The failure of the defendant to comply with this agreement, after the exercise of the option by the purchaser, and the resulting obligation upon the defendant, authorized the purchaser to institute at once a proceeding for specific performance of the agreement to execute the lease, without waiting until the date when the lease should become operative. The petition here was not, therefore, prematurely brought as contended by the defendant.
2. It is also insisted that the general demurrer should have been sustained because the petition for specific performance of the agreement to execute a lease did not allege any tender. The allegations show that the purchaser exercised his option within the time provided for under the agreement, and offered to carry out the terms of the contract, but the defendant informed the purchaser that he would not lease the premises to him.
Since equity will not require a useless formality, it is unnecessary to make a tender where the vendor, by conduct or declaration, proclaims that, if a tender should be made, acceptance would be refused. Fraser v. Jarrett, 153 Ga. 441,451 (3) (112 S.E. 487); Groover v. Brandon, 200 Ga. 153,165 (5) (36 S.E.2d 84), and citations. Furthermore, while the agreement in the case under review was that the respective parties would, upon exercise of the option, execute such legal instruments as were necessary to carry out the terms thereof, there was nothing in the agreement to show that any rent would become due before the date upon which the lease was to become operative.
The present case differs on its facts from Christopher v.Whitmire, 199 Ga. 280 (34 S.E.2d 100), and WashingtonMfg. Co. v. Wickersham, 201 Ga. 635 (40 S.E.2d 206).
3. Finally, it is insisted that the general demurrer should have been sustained because the written lease contract attached to the petition failed to show that there was a meeting of the minds of the respective parties, since there was no agreement to execute the standard lease form contract with reference to business property, either in the short form, or the long form, or as to many other stated provisions which it is contended were necessary to be included in a lease contract between parties leasing business property. *Page 197
The written agreement in question was that, upon exercise of the option, the parties would execute such legal instruments as were necessary in the leasing of described real estate for a term of three years, commencing August 5, 1946, at a rental of $75 per month. The agreement further provided that the lease should contain a privilege of renewal. While doubtless it would have been appropriate to include in such lease many of the provisions that were insisted upon, these provisions were not necessary in order to make a binding contract to lease the described property for a term of three years at the stated rental.
The petition was sufficient to withstand the general demurrer and to meet the requirements of law, as set forth in F. W.Grand Stores v. Eiseman, 160 Ga. 321, 331 (7) (127 S.E. 872), where it was said: "Where a contract for the sale of land is in writing, signed by both parties, is certain and fair, is for an adequate consideration, and capable of being performed, a court of equity, as a matter of course, will decree specific performance of the contract. Clark v. Cagle, 141 Ga. 703 (82 S.E. 21, L.R.A. 1915A, 317); Funke v. Browne,145 Ga. 828 (90 S.E. 64). The same principle is applicable in cases of contracts for the lease of land."
Accordingly, the trial court did not err in overruling the general demurrer to the petition.
Judgment affirmed. All the Justices concur.