Cochran v. Ogletree

• Decision Date: 21 June 2000
• Docket Number: No. A00A1531.,A00A1531.
• Citation: 244 Ga. App. 537,536 S.E.2d 194
• Parties: COCHRAN et al. v. OGLETREE.
• Court: Georgia Court of Appeals

536 S.E.2d 194

244 Ga. App. 537

COCHRAN et al. v.OGLETREE.

No. A00A1531.

Court of Appeals of Georgia.

June 21, 2000.

Richard D.C. Schrade, Jr., Stockbridge, for appellants.

William C. Drosky, Jonesboro, for appellee.

ELDRIDGE, Judge.

Pamela Ogletree sued Billy Cochran and Gregory D. Reed d/b/a Cochran & Reed on two purported construction contracts that were never performed to recover $55,000 deposited on Contract I and $20,000 deposited on Contract II; the defendants answered and countersued for their losses under Contract I.After a bench trial, the trial court found that plaintiff breached Contract I; that the defendants had damages of $18,003.07 resulting from their good faith part performance of Contract I; that the defendants owed plaintiff a refund of $31,996.93 of unearned funds deposited by the plaintiff on Contract I; and that on Contract II neither party was at fault because of the impossibility of performance, but defendants in good faith incurred $4,700 in expenses and had to refund $15,300 of the deposited funds of $20,000 to the plaintiff.The defendants appealed the judgment contending that plaintiff was not entitled to any refund under Contract I, because the money was paid voluntarily and that the defendants had no duty to prove their damages.We do not agree and affirm the judgment of the trial court.

1.Defendants' first contention is that the trial court erred as a matter of law in requiring any refund on Contract I, because plaintiff voluntarily paid the money.We do not agree.

The trial court found that the defendants owed a refund of $31,996.93 of the deposit of $50,000 paid to them by the plaintiff as unearned and unset-off damages sustained by the defendants under Contract I.The trial court never found that these funds were damages, but were the return of deposited funds of the plaintiff.

The purported written Contract I was void for vagueness, because no final plans and drawings had ever been agreed upon as to what would be built.Cherokee Falls Investments v. Smith,213 Ga.App. 603, 604-605(1), 445 S.E.2d 572(1994);see alsoSmith v. Bd. of Commrs. &c. of Hall County,244 Ga. 133, 143-144(5), 259 S.E.2d 74(1979).The application of all the rules of contract construction and parol evidence would not provide detailed plans, drawings, and specifications necessary to calculate the cost that plaintiff would owe and defendants were obligated to build; to determine the cost plus compensation that defendants would receive as consideration; and to obtain a building permit that government would permit to be built.Therefore, the purported contract lacked a definite contract subject, i.e., the drawings and design of the day-care center.Davidson Mineral Properties v. Baird,260 Ga. 75, 79(7), 390 S.E.2d 33(1990);Sheppard v. Sheppard,229 Ga.App. 494, 495(1), 494 S.E.2d 240(1997).Thus, the writing was formative in nature only, i.e., a promise to make an agreement.No binding contract ever came into existence, because "[i]t is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject-matter, and in the same sense.[Cits.]"Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn.,250 Ga. 391, 395, 297 S.E.2d 733(1982);Wilkins v. Butler,187 Ga.App. 84, 85, 369 S.E.2d 267(1988).Thus, this action was miscast and misconstrued by all parties as a breach of contract action, when it was an action for money had and received or unjust enrichment with a counterclaim for quantum meruit.

Here, neither party was bound by an enforceable contract.The theory of unjust enrichment applies when there is no legal contract and when there has been a benefit conferred which would result in an unjust enrichment unless compensated.SeeOCGA § 9-2-7;Zampatti v. Tradebank Intl. Franchising Corp.,235 Ga.App. 333, 340( 5), 508 S.E.2d 750(1998);Smith v. Huckeba,232 Ga.App. 374, 376(2), 501 S.E.2d 877(1998).Therefore, plaintiff was entitled to recover the money deposited under the invalid agreement, that never ripened into a valid contract, on the basis of money had and received or unjust enrichment.Plaintiff proved such amount and proved her entitlement to its return as a matter of law and fact.SeeEvans v. Evans,237 Ga. 549, 553, 228 S.E.2d 857(1976);Intl. Indem. Co. v. Bakco Acceptance,172 Ga.App. 28, 32(2), 322 S.E.2d 78(1984);Barton & Ludwig, Inc. v. Thompson,170 Ga.App. 187, 188, 316 S.E.2d 786(1984);Regional Pacesetters v. Halpern Enterprises,165 Ga.App. 777, 782(2), 300 S.E.2d 180(1983);City of Commerce v. Duncan & Godfrey, Inc.,157 Ga.App. 337, 277 S.E.2d 266(1981).An action for money had and received is a legal action, founded upon the equitable principle that no one ought to unjustly enrich himself at the expense of another, and it is a substitute for an equity action.It is appropriate where the plaintiff overpays or deposits more than was necessary with another, who has no legal right to retain the money.J.C. Penney Co. v. West,140 Ga. App. 110, 111-112(2), 230 S.E.2d 66(1976).Such action is based upon the equitable principle that one ought not retain money where one would thereby be unjustly enriched at another's expense.C & S Nat. Bank v. Youngblood,135 Ga.App. 638, 639, 219 S.E.2d 172(1975).Plaintiff can recover for money had and received only where it appears that the defendants have received money belonging to the plaintiff which, in equity and good conscience, the defendants are not entitled to retain.Id.;James Talcott, Inc. v. Roy D. Warren Commercial,120 Ga.App. 544, 545(1), 171 S.E.2d 907(1969).

While the trial court found that defendants had a duty to return the funds paid by the plaintiff, the defendants had rendered benefits to the plaintiff, in good faith, under the mutual mistake that there was a valid contract.The trial court found that the expenses and hourly rates for the time worked should be compensated by plaintiff; even though the contract was void, quantum meruit or the principle of unjust enrichment, applied on behalf of the defendants, gave rise to the duty for the plaintiff to pay to the defendants the value of the services and expenses incurred, because the plaintiff received some benefit.Watson v. Sierra Contracting Corp.,226 Ga.App. 21, 28, 485 S.E.2d 563(1997)(physical precedent only);White v. Arthur Enterprises,219 Ga.App. 124(1), 464 S.E.2d 225(1995).Such duty to pay the value for the benefit in unjust enrichment is analogous to quantum meruit in that the duty to pay arises out of the receipt of the benefit accepted by the plaintiff from the defendants.Quantum meruit, unlike unjust enrichment, relies upon an implied promise of...