Tipton v. Harden, 197 S.E.2d 746 (Ga. Ct. App. 1973). · Go Syfert
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Tipton v. Harden, 197 S.E.2d 746 (Ga. Ct. App. 1973). Cases Citing This Book View Copy Cite
51 citation events across 4 distinct courts.
Strongest positive: Ackerman v. First National Bank of Grady County (gactapp, 1999-07-23)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 10 distinct citers.
discussed Cited as authority (rule) Ackerman v. First National Bank of Grady County
Ga. Ct. App. · 1999 · confidence medium
The precise holding of Tipton v. Harden, 128 Ga. App. 517, 519 (2) ( 197 SE2d 746 ), relied upon by defendant, is that the existence of a counterclaim in excess of the amount demanded by the plaintiff is ample reason to deny a motion for summary judgment.
discussed Cited as authority (rule) Perry Agri Distributors, Inc. v. Bailey Seed Farms, Inc.
Ga. Ct. App. · 1983 · confidence medium
However, even assuming arguendo that Herbert Perry’s single visit to Indiana was sufficient as a “minimum contact” to establish jurisdiction under the long-arm statutes, there is no evidence in the record to show that Perry made the visit as an agent or representative of appellant-corporation, Perry Agri Distributors, Inc. The evidence shows instead that Herbert Perry had, beginning in March 1980, placed orders with appellee in his own name and that in mid-1981, appellee noticed that he was placing orders under the name of Perry Agri Distributors, Inc. Construing all inferences arising f…
cited Cited as authority (rule) Kicklighter v. SAVANNAH TRANSIT AUTHORITY
Ga. Ct. App. · 1983 · confidence medium
Tipton v. Harden, 128 Ga. App. 517, 519 (4) ( 197 SE2d 746 ) (1973).
discussed Cited as authority (rule) Hawkins v. Turner (2×)
Ga. Ct. App. · 1983 · confidence medium
Tipton v. Harden, 128 Ga. App. 517, 519 (4) ( 197 SE2d 746 ) (1973). *53 It was the burden of appellees as movants to establish the absence of any issue of material fact.
cited Cited as authority (rule) Drake v. Leader National Insurance
Ga. Ct. App. · 1980 · confidence medium
See Holland v. Sanfax Corp., *317 106 Ga. App. 1, 4-5 (1) ( 126 SE2d 442 ); Tipton v. Harden, 128 Ga. App. 517, 519 (4) ( 197 SE2d 746 ); Gray v. American Bank, 122 Ga. App. 442 ( 177 SE2d 207 ).
discussed Cited as authority (rule) Mock v. CANTERBURY REALTY COMPANY (2×)
Ga. Ct. App. · 1980 · confidence medium
Following the Rubel decision in 1968, this court followed the rule announced therein in the case of Tipton v. Harden, 128 Ga. App. 517, 519 (2) ( 197 SE2d 746 ), adhering to the principle that it is not an abuse of discretion to deny a summary judgment in the face of a valid, pending counterclaim.
cited Cited as authority (rule) Cobb County Syndicate I v. Frederick W. Berens, Inc.
Ga. Ct. App. · 1978 · confidence medium
Therefore, such cases as Rubel Baking Co. v. Levitt, 118 Ga. App. 306 ( 163 SE2d 437 ); Tipton v. Harden, 128 Ga. App. 517, 519 (2) ( 197 SE2d 746 ); and Mays v. C. & S. Nat.
discussed Cited as authority (rule) Thompson v. First National Bank & Trust Co.
Ga. Ct. App. · 1977 · confidence medium
Construing the disputed facts in favor of the appellant, as we must do on a grant of summary judgment (Tipton v. Harden, 128 Ga. App. 517 *176 (4) ( 197 SE2d 746 ) (1973)), we hold that sufficient facts were alleged to establish a defense to the appellee’s suit on the note.
discussed Cited as authority (rule) Duval & Co. v. Malcom
Ga. · 1975 · confidence medium
Similarly, growers have failed to show entitlement to summary judgment because, construing every inference against them as we must on their motion (Tipton v. Harden, 128 Ga. App. 517, 519 ( 197 SE2d 746 )), they have not carried the burden of proving the negative, that is, of ruling out as a matter of law all possibilities of the contract that buyer claims could have been reached.
discussed Cited "see" Dozier v. Matthews
Ga. Ct. App. · 1975 · signal: see · confidence high
See Tipton v. Harden, 128 Ga. App. 517 , supra. Defendant tries to show he intended this paragraph to mean something entirely different, but it is clear that the above is the only meaning that can be placed on paragraph 10.
TIPTON Et Al.
v.
HARDEN Et Al.
47843.
Court of Appeals of Georgia.
Feb 12, 1973.
197 S.E.2d 746
D. Landrum Harrison, for appellants., R. U. Harden, for appellees.
Evans, Hall, Clark.
Cited by 24 opinions  |  Published
Evans, Judge.

On or about April 8, 1971, the plaintiffs, Mr. and Mrs. James Tipton, executed a sales contract for the purchase of certain real estate in Waynesboro, Burke County, Georgia, from Robert E. Neely, Jr. and Marion Walker. Ann B. Harden acted as realty agent in the transaction. The purchasers deposited $5,000 with the sellers as earnest money. The contract named $50,000 as the purchase price and was contingent on the purchasers being able to secure a loan of $35,000 from First Federal Savings & Loan Association of Augusta, Ga. The sale did not take place, and Mr. and Mrs. Tipton sued Neely, Walker and Harden for the[*518] $5,000 which had been deposited as earnest money.

Plaintiffs contended the contract was so vague, indefinite, uncertain and lacking in mutuality as to be completely void and unenforceable. Defendants answered, admitting execution of the contract, and contended same was valid and enforceable, and alleged that plaintiffs could have obtained the $35,000 loan. Defendants also alleged that they had removed their belongings from the premises in order to make it available for occupancy by the plaintiffs, and further, that defendants had expended $400 in order to secure the commitment of a loan of $35,000 for the purchasers which involved payment for a "termite certificate” showing the building was not infested with termites, all of which was required by the said First Federal Savings & Loan Association of Augusta. Defendants contended that plaintiffs were estopped to deny and renege as to the contract, because they had sat by, knowing defendants were removing their belongings from the property, and were expending $400 for a termite certificate to insure the loan commitment and said notice. Defendants filed a counterclaim alleging that they were entitled to recover damages in the amount of $8,400 because of the expenditures and inconvenience they had suffered, including taking the house off the market.

On summary judgment the Tiptons offered evidence that they could not obtain a "reasonable loan” from the First Federal Savings & Loan Association. In opposition thereto, defendants offered evidence that a loan had been approved by the loan association. But this committment was later rescinded when a revised financial statement was submitted by plaintiffs, in which plaintiffs contended they had previously given incorrect information to the loan association. Mrs. Harden also swore by affidavit that Mrs. Tipton had advised that she wanted "termite clearance,” which[*519] the sellers authorized, and the termite inspection and treatment was then secured at a cost of $400 to the sellers. Held:

1. As to plaintiffs’ contention that the contract was not fulfilled because they could not obtain the loan of $35,000 contemplated by said contract, the burden was on them to show that they were unable to procure same after diligent effort. Barto v. Hicks, 124 Ga. App. 472, 475 (184 SE2d 188); Sheldon Simms Co. v. Wilder, 108 Ga. App. 4, 5 (131 SE2d 854). Instead of showing plaintiffs’ diligent effort to procure the loan, the evidence shows that plaintiffs went back to the loan association and gave a new version of their financial stability, completely withdrawing their earlier financial statement. Either the first version or second version was false.

2. Defendants’ counterclaim was for an amount in excess of the amount demanded by plaintiffs in their petition. This is ample reason for denying plaintiffs’ motion for summary judgment. Rubel Baking Co. v. Levitt, 118 Ga. App. 306 (163 SE2d 437).

3. Plaintiffs had no right to rescind the contract without the consent of defendants, unless defendants had failed to comply with their obligations under the contract, and could be restored to their former position. Code § 20-907. Here the plaintiffs made no tender under the contract, nor did they contend that defendants had not complied with the contract. The well-known rule of estoppel operates against plaintiffs under these circumstances and prevents their attempted rescission of the contract. Code § 38-114.

4. In motions for summary judgment, the evidence must be construed most favorably toward the party opposing the grant of same; and most unfavorably toward the party applying for the motion for summary judgment. All inferences and conclusions which arise from the evidence must be likewise construed. See Gray v. [*520] American Bank of Atlanta, 122 Ga. App. 442, 443 (1) (177 SE2d 207); Candler General Hospital v. Purvis, 123 Ga. App. 334 (1) (181 SE2d 77).

Argued January 8, 1973 Decided February 12, 1973 Rehearing denied March 15, 1973 D. Landrum Harrison, for appellants. R. U. Harden, for appellees.

5. Under these rules of construction, the learned trial judge in this case could very well have concluded that the plaintiffs changed their minds about the fulfillment of the contract after executing same; that they gave a second financial statement to the loan association to insure that they would not receive the $35,000 loan contemplated by the contract, when otherwise they would have received same; that they allowed defendants to expend $400 for a termite certificate; allowed them to remove their belongings from the house to make it ready for occupancy by plaintiffs, and allowed them to take the house off the market, without doing anything to put defendants on notice that they had changed their minds about the contract, and did not intend to go through with it. The trial judge was thus fully authorized to deny plaintiffs’ motion for summary judgment.

Judgment affirmed.

Hall, P. J., and Clark, J., concur.