This is an appeal from an order of the Superior Court of Dougherty County directing a verdict in favor of plaintiff/appellee Burt Development Company “Burt” on its complaint for damages based upon defendant/appellant Jayantital Patel’s breach of contract to purchase the Heritage House hotel in downtown Albany. Upon the facts that follow, we reverse. On May 5, 1997, Patel entered into a “Standard Commercial Sales Agreement” with Burt to purchase the Heritage House for $1,050.000. Under the specific terms of the contract contained in paragraph 21 thereof, Patel agreed, to purchase said property based upon receiving financing to purchase and renovate property. Purchaser Patel agrees to pursue said financing with due diligence and notify seller Burt by June 15, 1997 if purchaser is unable to obtain said financing.” The contract specified the closing date as June 30, 1997. It is undisputed that Patel failed to either give notice that he was unable to obtain financing by the required date or to close on June 30, 1997.
Approximately a week after the scheduled date for closing, Burt made contact with Patel. Patel asked for an “extension” of 45 days. Burt agreed to such extension upon the condition that Patel put up an additional $5,000 in earnest money. On July 17, 1997, the parties met to sign an amendment to the original contract reflecting the extension agreement as follows: Seller has agreed that in consideration of the Purchaser depositing an additional Five Thousand and No/100 $5,000 Dollars deposit binder to the Five Thousand and No/100 $5,000 Dollars binder previously deposited to extend the time for the consummation of the subject Contract for a period of forty-five 45 days from July 21, 1997. Except for the amendment, “all of the terms and conditions of said Contract shall remain in full force and effect.” At the signing of the extension amendment, Burt insisted that the additional $5,000 escrow money be put into an escrow account maintained by Burt’s realtor, Don Evans; this provision was handwritten into the amendment and initialed by Burt. Patel refused to agree to such provision and refused to initial the change in the amendment. Thereafter, Patel failed to put additional money into an escrow account or to close on the property. The Heritage House was subsequently sold to a third party for $850,000.
