Judgment reversed with direction. Felton, C. J., Jordan, P. J., Hall, Eberhardt, Pannell, Deen and Whitman, JJ., concur. Quillian, J., dissents.

Jones, Bird & Howell, C. Dale Harman, for appellee.Hansell, Post, Brandon & Dorsey, Gary W. Hatch, for appellant.

If the terms of a contract for the sale of realty show a gross consideration including the assumption of an incumbrance which is properly identified plus payment of the balance of the purchase price in cash on closing the transaction, the terms of payment can be ascertained by reference to the incumbrance and the contract is thus capable of enforcement.

The plaintiff, designated as purchaser in a contract for the sale of realty, brought this suit to recover the earnest money deposited with the real estate broker. The defendant broker filed a cross claim to recover the balance of the commission specified by the contract. The sole issue in the case was whether the contract was sufficiently definite to constitute an enforceable agreement. The parties stipulated facts necessary to the decision of the case, and both filed motions for summary judgment.

The trial judge held the contract too vague and uncertain, granted the motion for the plaintiff and denied that of the defendant, providing in his order that such denial be appealable. Code Ann. 81A-156 (h) (Ga. L. 1966, pp. 609, 660; Ga. L. 1967, pp. 226, 238). In argument before this court the plaintiff-appellant insists the deficiency in the contract is relative to the terms under which the purchase price for the bargained property was to be paid, and appellee focuses his argument on the same facet of the case.

A contract for the sale of realty must expressly state the consideration or it must furnish a key by which the amount and terms of the purchase price can be ascertained; if the contract furnishes a key to the details of the consideration, that is sufficient. Muller v. Cooper, 210 Ga. 635 (81 SE2d 828), but clearly refers to one already in existence. And the incumbrance identified is apparently one against the property which is the subject of the contract. Nickelson v. Owenby, 208 Ga. 352 (1) (66 SE2d 828). Reference to the incumbrance and mathematical computation would render absolutely certain the amount of cash payable, the number of monthly payments remaining and the dates on which payments would be due. We think it is obvious that this provision does not render the contract unenforceable for any reason argued.

This case comes under the principles followed in Muller v. Cooper, 208 Ga. 352, supra. The cases of Trust Co. of Ga. v. Neal, 214 Ga. 555 (105 SE2d 580); Aycock Realty Co. v. Brown, 100 Ga. App. 550 (112 SE2d 14) and others cited by plaintiff and in the dissenting opinion are clearly distinguishable on their facts from this case. The judgment of the trial court is reversed with direction to the trial judge to enter judgment in accordance with the prayers in defendant's counter claim.

QUILLIAN, Judge, dissenting.

The function of a contract for the sale of realty is to define precisely the rights to accrue and the obligation assumed by the signatory parties under its provisions. The standard of certainty requires that the language of the contract be sufficiently definite to set forth every essential element of the transaction so that the meaning of the agreement clearly appears without resort to parol evidence (Morgan v. Hemphill, 214 Ga. 555, 557 (105 SE2d 580)), or that it furnish a directive or key through which the meaning of its material terms are made clearly to appear. In the case of Morgan v. Hemphill, supra, p. 556, it is held: "Where the amount of the purchase price fixed by the contract is certain and definite, but the terms of payment are indefinite and uncertain, the writing is not a contract and confers no rights and imposes no liability. Rush v. Autry, 210 Ga. 732, 734 (82 SE2d 866). See Saye v. Adams Loan &c. Co., 96 Ga. App. 891, 892 (102 SE2d 82); Trust Co. of Ga. v. Neal, 213 Ga. 650 (100 SE2d 730); Morgan v. Hemphill, 214 Ga. 555, supra.

1968