JBM Investments LLC v. Callahan Indus. Inc.

JBM Investments, LLC appeals an order granting summary judgment in favor of Callahan Industries, Inc. and denying its own motion in this case involving assignment of a contract to purchase land. The record shows that on January 31, 2006, JBM entered into an agreement to purchase approximately 160 acres of land in Barrow County from SJC Development, LLC. The price was set at $45,000 per acre, and JBM paid earnest money of $50,000. The purchase agreement contains a contingency related to an attempt to rezone the property. If the property was not rezoned as specified by May 31, 2006, JBM’s earnest money would be refunded. The agreement did not provide, however, that JBM could unilaterally terminate the agreement. The agreement did provide that JBM could assign its interest in the agreement without notice to the seller. Time was of the essence for the agreement, and the closing was scheduled for 31 days after rezoning.

On March 21, 2006, JBM entered into a one-page “Assignment of Purchase and Sales Agreement” with Callahan. The simple agreement, which JBM asserts was drafted by Callahan, recites the existence of the purchase agreement, Callahan’s desire to assume all rights and obligations of that agreement, and JBM’s willingness to assign its rights to Callahan “under the following terms and consideration:”For consideration of assignment, Callahan Industries, Inc. agrees to $100,000.00 refundable earnest money until property is rezoned by Barrow County nonrefundable after rezone. Callahan paid JBM $50,000 upon the execution of the assignment and never paid the remaining $50,000. The parties dispute whether an intermediary acted as an agent for JBM and agreed to accept the lesser amount.