Barnes v. Didschuneit, s. 36274

• Decision Date: 24 September 1956
• Docket Number: Nos. 36274,36289,No. 1,s. 36274,1
• Citation: 94 Ga.App. 661,96 S.E.2d 216
• Parties: BARNES et al. v. DIDSCHUNEIT. DIDSCHUNEIT v. BARNES et al
• Court: Georgia Court of Appeals

Page 216

96 S.E.2d 216

94 Ga.App. 661

BARNES et al. v. DIDSCHUNEIT.

DIDSCHUNEIT v. BARNES et al.

Nos. 36274, 36289.

Court of Appeals of Georgia, Division No. 1.

Sept. 24, 1956.

Rehearing Denied Nov. 20, 1956.

Syllabus by the Court.

1. The cross-action was not subject to a general demurrer on the ground that it alleged an unenforceable contract nor was it subject to a general demurrer on the ground that it showed the defendant was an unlicensed real estate broker and was suing for commissions; therefore, the court did not err in overruling the demurrers to the cross-action.

2. Since the defendant proved his case as alleged in his cross-action, the court erred in granting a nonsuit.

Ralph W. Didschuneit sued J. C. Barnes and Lucile Barnes on a promissory note. The defendants admitted a prima facie case on the note, but the defendant J. C. Barnes filed a cross-action. The plaintiff's general demurrers to the cross-action were overruled. The defendant J. C. Barnes introduced evidence on his cross-action and at the close of such evidence the court granted the plaintiff a nonsuit on the cross-action. The defendant J. C. Barnes excepts to that judgment and by cross-bill, the plaintiff excepts to the judgment overruling his demurrers to the cross-action.

Robert Carpenter, Ferrin Y. Mathews, A. Tate Conyers, Atlanta, for plaintiff in error.

Carter, Latimer & Savell, Atlanta, for defendant in error.

FELTON, Chief Judge.

1. Since we must consider the cross-bill of exceptions and because that ruling bears on the consideration of the question presented in the main bill, we will first consider the cross-bill. In his cross-action, the defendant J. C. Barnes alleged: '3. Defendant shows that in 1946 he entered into an agreement with the plaintiff by which the defendant was to devote his time and services in locating real estate to be purchased with the money furnished by the plaintiff; that the defendant was to locate said property, secure the purchasing price, handle the purchase, and that said property would be resold through real-estate brokers; that the profit realized upon said property and its resale was to be divided equally between the plaintiff and your defendant. 4. In accordance with said agreement, the defendant using the plaintiff's money on three separate occasions did purchase one lot on each of said occasions said property being located on Altedena Place, S. W., Atlanta, Georgia, said transactions taking place during the years 1946, 1947 and 1948. 5. On the above said sales the profit from same was divided equally between plaintiff and defendant. The credit of $83.29 (applied by the plaintiff against the total indebtedness of $1,750, and leaving the amount sued for by the plaintiff of $1,666.71) was the amount of profit due defendant after the last of said resales of property. 6. Defendant shows that in the fall of 1952, at the request of the plaintiff, he began searching for more real estate to be purchased with the money of the plaintiff. As a result of the time and effort expended by defendant he did locate a tract of land on Northside Drive at Eighth Street, Atlanta, Georgia, which had six Negro dwellings located upon it. 7. Defendant did handle the negotiations for the purchase of this property and did effectuate the purchase of same, for the sum of $10,500 in December, 1952. 8. The closing of the purchase took place in the office of Brewer Head Company and said firm handled the rentals on said property, under the instruction of defendant, until the property was resold in October, 1954. 9. Said property was resold on or about October 11, 1954, for the sum of $13,000. 10. Defendant had no knowledge of the property being resold, the date of the sale, nor the sales price. 11. Defendant shows that after the closing of said sale, the costs rental, and option fees, were deducted and the plaintiff netted the sum of $4,277.56, said sum representing the profit from the resale and the rentals received from the time property was purchased until resold. 12. Under the agreement with plaintiff and defendant, the defendant is entitled to one-half of the profit, or $2,138.78 and for which sum your defendant sues. 13. Defendant further shows that after he learned of the resale of the property, on numerous occasions well known to plaintiff, he offered to settle up with the plaintiff on the amounts each owed the other, but that the plaintiff has failed and refused to make an accounting or to pay to defendant one-half of the profits due him. 14. Defendant further shows that the plaintiff on many occasions, well known to him, has told defendant not to worry about the payments on the note but that they would take care of it all at a later date. 15. Defendant shows that the plaintiff in accordance with the above said statement did not insist upon any payments upon the note until approximately ninety days after the note was signed. After the lapse of approximately ninety days the plaintiff sent a collection letter to your defendant. Defendant shows that he then informed the plaintiff of the credit due him from the sale of the property in 1948 and that the plaintiff did apply said credit to the total indebtedness. 16. After applying said credit the plaintiff did write your defendant's employer concerning the defendant not paying said note and did thereafter on March 17, 1955, institute this suit against your defendant. 17. Defendant shows that at no time since the property was resold on or about October 11, 1954, has the plaintiff given to defendant an accounting of the profit, but that the plaintiff has failed and refused to give such an...