1. Where an order of the trial court sustaining a general demurrer to the plaintiff's petition gives the plaintiff a ten-day period in which to amend, otherwise the petition to stand dismissed, and there is no exception to this order, and the plaintiff amends his petition within the ten-day period, it is adjudicated that the petition may be amended, and this court can consider the case only as presented by the amended petition.
2. A tender of the money required of the vendee to comply with the terms of a contract to sell a one-half interest in two businesses is waived where it is shown by acts of the vendor that such tender would be useless.
3. The measure of damages, upon default of the vendor, in an action by the vendee for breach of a contract to sell a one-half interest in two businesses, is the difference in the market value of this interest at the time of the breach of the contract, and the contract price.
4. The petition as amended states a cause of action, and the trial court erred in sustaining a general demurrer of the defendant to the amended petition, and in dismissing the action.
DECIDED OCTOBER 2, 1948. Vayanos Anagnostis filed suit in the Superior Court of Fulton County against E. A. Alexandrou, alleging: that prior to March 31, 1944, plaintiff and defendant were partners in the Douana Liquor Store and the Douana Soda Company, both located in Atlanta; that on March 31, 1944 plaintiff sold and delivered possession of his undivided one-half interest in the partnership to defendant for $4500; that as a part of the consideration of the sale defendant gave plaintiff an option of repurchasing this one-half interest for the same amount within one year of plaintiff's discharge from the armed forces of the United States, plus one-half of the cost of the increase in stock and fixtures which defendant may have added after the sale of the business; that plaintiff was discharged from the armed forces of the United States on March 3, 1946, and, on or about March 12, 1946, and again on or about April 4, 1946, exercised his option to repurchase and offered to perform his part of the contract and pay the entire purchase-money, but that said offer was declined and refused by the defendant; that there was no increase in stock and fixtures of said business from the time of sale until the offer to repurchase, other than an electric refrigerator worth $500; that said business had a special and peculiar value to plaintiff; and that plaintiff was without an adequate remedy at law; and he prayed for specific performance of this contract, discovery of any increase in value of the stock, an accounting of rents and profits, and for such other relief as the nature of the case required.
The alleged contract, a copy of which is attached to the petition, is, in its material parts as to the terms, as follows: "This bill of sale made this 31st day of March, 1944, at 10:00 o'clock p. m., between Vayanos Anagnostis of the first part and E. A. Alexandrou of the second part.
"Witnesses that said first party for and in consideration of the sum of forty five hundred dollars ($4500) in hand paid, the receipt of which is hereby acknowledged, has bargained, sold and transferred and does hereby bargain, sell, transfer and set over to said second party all his undivided one-half interest in the business and assets of the partnership heretofore existing between said parties conducting the business known as, Douana Liquor Store, 174 Whitehall Street, S.W., Atlanta, Ga., and the business known as Douana Soda Company, 174 Whitehall Street, S.W., *Page 744 Atlanta, Ga., said assets consisting in the main of the stock and fixtures of said two businesses, and including all liquor, wine, beer, cigars, cigarettes, tobacco, candy, groceries, provisions, soda fount and equipment, kitchen outfit, stoves, refrigerator, ice box, counters, show cases, wall cases, glassware, china, silverware and all other articles and things belonging to said partnership; and including all licenses and rights of every kind, two cash registers with $50 of change therein. This sale, however, does not include first party's one-half interest in money in bank. It is a consideration of this trade that if first party desires to again become an equal partner with second party, he shall have the right and option to buy back said one-half interest hereby conveyed at and for the same price as hereinbefore set forth plus one-half the cost of any additional stock and fixtures; that is to say, if there is more stock (in value) at that time than there is at the time this sale goes into effect first party shall pay second party one-half of the excess. This option shall be exercised within one year after first party is discharged from the armed forces of the United States. Inventory of stock, taken March 31, 1944, at 10 o'clock, p. m., amounts to $3712. This sale shall be effective as of March 31, 1944, at which time said partnership shall become dissolved."
Defendant filed a general demurrer to the petition, setting forth several reasons why the petition should be dismissed, whereupon the court passed the following order: "The parties by their attorneys of record consenting, the grounds of the foregoing demurrer are sustained with the right for plaintiff to amend his petition within ten days from this date, and in default of said amendment being filed, this case is to stand dismissed with — dollars cost against the plaintiff." This order is dated October 18, 1946, and on October 26, 1946, the plaintiff offered an amendment to the court, which was allowed, seeking to convert the action into one at law for damages for an alleged breach of contract, and all equitable features of the petition were stricken. In general, the amendments changed the petition so that it was alleged that, although plaintiff offered to perform the contract on March 12, 1946, and again on April 4, 1946, said offer was declined and refused; "the said defendant notifying petitioner that he would not accept less than twenty-five thousand ($25,000) *Page 745 dollars plus one-half the cost of stock on hand for a one-half interest in said business;" and it was alleged that the market value of the Douana Liquor Store on both March 12, 1946, and April 4, 1946, was at least $45,000 plus the cost of stock and merchandise on hand, and that the market value of the Douana Soda Company on the same dates was at least $5000 plus the cost of stock and merchandise on hand; and that the value of an undivided one-half interest in the two businesses was worth at least $25,000 on these dates, plus one-half of the cost of the stock and merchandise on hand, and that defendant had injured and damaged plaintiff in the sum of $20,250 by reason of the facts set out in the petition, and judgment was sought for this amount.
A general demurrer to the petition as amended was filed, urging a number of reasons wherein the petition did not state a cause of action or wherein the petition was defective, on which, after a hearing, the court passed the following order and judgment: "The renewed demurrer to the petition as amended is sustained on each ground thereof and the case is dismissed."
It was held by the Supreme Court that the first order on demurrer, as quoted above, not having been excepted to or set aside, adjudicated that the petition as it then stood did not state a cause of action for the equitable relief prayed, and that, since the amendment did not seek to reinvest the petition with any equitable features, the suit must be treated as having ceased to be one in equity, and that in determining whether the case is an equity case within the jurisdiction of the Supreme Court, or an action at law within the jurisdiction of the Court of Appeals, it "must be appraised in the character it bore at the time" of the judgment on which error is assigned. Anagnostis v.Alexandrou, 203 Ga. 752 (48 S.E.2d 521). Accordingly, that court transferred the case to the Court of Appeals, and the case is here on exceptions to the sustaining of the renewed demurrer to the petition as amended. 1. The order and judgment on the original petition, in so far as it gave the plaintiff a ten-day period in which to amend, adjudicates that *Page 746 the petition may be amended, and, as there is no exception to this order, and the plaintiff amended within the ten-day period, this court can consider the case only as presented by the amended petition.
2. While the plaintiff alleges only an offer to perform, and does not allege a tender of any money, he further alleges a refusal of this offer by the defendant, coupled with an affirmative statement by the defendant of the terms and conditions upon which the defendant would sell the plaintiff a one-half interest in the two businesses, i. e., that the defendant stated he would perform only upon the payment of $25,000, plus the cost of one-half of the stock and merchandise. As shown by the petition and the facts stated therein, this amount is in excess of the amount which the plaintiff is required to offer the defendant under the terms of the contract, and a tender of the correct amount of money as shown by the alleged facts of the petition was waived by the defendant. See Code, §§ 20-1104, 20-1105; Arnold v. Empire Mutual Annuity Life Ins.Co., 3 Ga. App. 685(5) (60 S.E. 470); Ansley v.Hightower, 120 Ga. 719(4) (48 S.E. 197); Groover v.Brandon, 200 Ga. 153(5) (36 S.E.2d 84).
3. Applying the alleged facts as shown in the petition to the terms of the contract, and assuming under these facts that the market value of a one-half interest in the businesses on the dates when the plaintiff offered to exercise his option under the contract was $25,000, rather than $25,000, plus one-half of the cost of the stock and merchandise as was actually alleged, as the only addition in stock or fixtures was a refrigerator worth $500, the plaintiff was entitled to buy this one-half interest worth $25,000 for $4500 plus one-half the value of the refrigerator, $250, a total of $4750. This difference, $20,250, being the difference in the market value and the contract price of the one-half interest at the time of the breach of the contract, is the measure of damages in this action by the vendee against the vendor for the breach of the contract to sell a one-half interest in the two businesses. Piedmont Wagon Co. v. Hudgens, 4 Ga. App. 393(1) (61 S.E. 835); Trigg Candy Co. v. Emmett ShawCo., 9 Ga. App. 358, 360(3) (71 S.E. 679); Southern CottonOil Co. v. Adams, 69 Ga. App. 88 (24 S.E. 719); Maxwell v.Persons, 150 Ga. 339 (103 S.E. 816). Assuming, however, that the market value of *Page 747 a one-half interest is as alleged, $25,000 plus one-half of the cost of the stock and merchandise, if the cost value of the stock and merchandise was $3712, this amount being the stipulated value at the time of the sale of the plaintiff's interest in the businesses, the $4750 which the alleged facts show that the plaintiff must pay to buy back his one-half interest in the businesses would include a one-half interest in this stock and merchandise, and the plaintiff's damages are thus actually in excess of the $20,250 sought, to the extent of one-half of the value of such stock and merchandise, which has a total cost value not in excess of $3712, but a failure to make a claim for this additional amount by the plaintiff is of benefit only to the defendant, and would not affect the plaintiff's claim for damages as shown by the petition. The alleged facts show that, at the time of the offer of the plaintiff and refusal by the defendant to carry out the terms of the contract, the stock and merchandise did not exceed $3712 in cost value.
4. The controlling question before this court is whether the amended petition states a cause of action. As heretofore shown, the petition shows a contract between the plaintiff and the defendant, breach thereof by the defendant, and damage to the plaintiff. This presents a cause of action, and the court erred in sustaining the general demurrer to the amended petition and in dismissing the petition.
Judgment reversed. Felton and Parker, JJ., concur.