Dell v. Kugel

• Decision Date: 18 May 1959
• Docket Number: No. 37589,No. 1,37589,1
• Parties: R. C. DELL, Jr., et al. v. L. J. KUGEL et al
• Court: Georgia Court of Appeals

Page 532

109 S.E.2d 532

99 Ga.App. 551

R. C. DELL, Jr., et al. v. L. J. KUGEL et al.

No. 37589.

Court of Appeals of Georgia, Division No. 1.

May 18, 1959.

Syllabus by the Court

1. Where, in a case in the Civil Court of Fulton County, involving more than $300, a bill of exceptions is tendered to the trial judge on January 14, 1959, assigning error on a judgment entered in that court on December 15, 1958, such bill of exceptions is tendered within the requisite thirty-day period (Ga.L.1956, pp. 3271-3281; Code, § 102-102, subd. 8; Charleston & Western C. Ry. Co. v. Cottonseed Oil Co., 22 Ga.App. 337, 96 S.E. 586), and a motion made in this court to dismiss the writ of error on the ground that the bill of exceptions was not presented to the trial judge within the requisite statutory time is without merit and is denied.

2. If the allegations of the petition do not show the right of the plaintiff to recover the full amount sued for against all of the defendants against whom a default judgment is entered the judgment must be set aside.

3. The appropriate remedy where one wrongfully receives and retains the money of another is an action for money had and received.

4. The general rule is that on money paid by mistake, where there is no fraud or misconduct by the party receiving it, interest does not run until after demand. The rule is to the contrary where one obtains and retains possession of another's money mala fides, that is, through fraud, theft, or artifice.

5. In an action for money had and received where more than one person is sued, a joint recovery of the whole amount against all will not be authorized, unless it appears that all received the money jointly. If it was not so received, the plaintiff can only recover from each defendant separately the amount shown to have come into his hands.

6. Though in order to dispose of a case it is not necessary to pass upon a contention, if the contention is likely to be made upon another trial of the case it is not only wise to put the question at rest, but it is now mandatory.

7. The proper order of disposing of demurrers directed respectively against the petition and defensive pleadings, is first to pass upon the demurrers to the petition. However, unless the petition is subject to general demurrer, or valid grounds of special demurrer the sustaining of which would have the effect of striking allegations essential to the plaintiff's right to have a judgment entered in his favor, the order in which the demurrers are passed upon is immaterial, and the trial court's failure to pass upon the demurrers to the petition is harmless.

8. Voluntary payments made under an invalid contract may be recovered.

9. A payment made under an invalid contract may be recovered whether paid to extend the time of consummating the contract or as earnest money.

10. The allegation that an event occurred is sufficiently definite, when such averment informs the opposite party of sufficient facts to enable him to deny that the event occurred or to explain the circumstances under which it took place.

11. It is not necessary to a wellpleaded action for money had and received that a demand for the return of the money be alleged.

12. For the reasons stated in division 4 the demurrers to the plaintiff's prayer for interest is without merit.

13. Grounds of special demurrer technically deficient or that raise a point obviously without merit, will not be discussed.

14. Where there is a conflict between the denial of a fact and an admission of the same fact contained in a pleading, the latter must prevail. The general rule is that allegations in a petition must yield to contradictory facts shown in exhibits attached thereto.

15. The denial of any paragraph of the petition or portion of a paragraph alleging a fact essential to the plaintiff's recovery sets forth a valid, issuable defense; hence an answer containing such a denial prevents the case being marked in default, or final judgment being entered.

16. A cross-bill which does no more than attempt to set up a verbal contract in conflict with a written contract upon which the pleader relies and in his answer alleges is valid, and to set off without legal or equitable excuse, a claim ex delicto against a cause ex contractu is properly stricken.

Leonard J. Kugel and Rebecca B. Kugel sued Robert C. Dell and Robert C. Dell, Jr., d/b/a Bob Dell Realty Company and Swims, Williams & Bray Construction Company, a corporation, in the Civil Court of Fulton County for money had and received. The petition was in four counts. Count 1 alleged: the plaintiffs are entitled to recover of defendants the sum of $2,100 plus interest at the legal rate from July 18, 1957; on July 8, 1957 the plaintiffs entered into a purported contract with the defendant Swims, Williams & Bray Construction Company by the terms of which the plaintiffs agreed to buy through the defendants, Robert C. Dell and Robert C. Dell, Jr., certain real estate described in an exhibit attached to the petition. The description of the property contained in the exhibit was: 'all that tract of land in Land Lot 163, 17th District, Fulton County, Georgia in Block B, parcel 15, known as 4940 Rebel Trail according to present system of numbering houses and naming streets in Fulton County, Georgia, including all lighting fixtures attached thereto, and all heating, water heating, and plumbing equipment therein, and all other fixtures & appliances.'

It was further alleged that on July 18, 1957, the plaintiffs deposited with the Dell defendants $1500 as earnest money, which money was to be paid to those defendants as commissions in the event the plaintiffs failed and refused to completed the sales agreement. It was alleged that a copy of the contract was attached to and made a part of the petition. Provisions of the contract pertinent to the issue of the case read: 'The purchase price of said property shall be thirty-one thousand & No/100 dollars ($31,000) cash--subject to purchaser procuring a mortgage of 2/3's of purchase price at 5 1/2% interest.

'Purchaser has paid to the undersigned, Bob Dell Realty Company, broker, receipt where [sic, whereof?] is hereby acknowledged by such broker, $1,500, as earnest money, which earnest money is to be applied as part payment of purchase price of said property at the time sale is consummated * * *

'This contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement.'

The petition further related that the exhibit described the plaintiffs as the 'buyers' and provided in particular that the consideration of the sale was referred to in the exhibit as follows: 'The purchase price of said property shall be thirty-one thousand & no/100 dollars ($31,000) cash--subject to purchaser procuring a mortgage of 2/3's of purchase price at 5 1/2% interest'; that by reason of the foregoing term the agreement is not a legal contract and imposes no rights or liabilities on the plaintiffs and defendants; Robert C. Dell and Robert C. Dell, Jr., have no right to retain the $1,500 earnest money under the terms of the purported agreement or for services leading up to the same; the plaintiffs paid E. J. Swims, president and agent of the defendant, Swims, Williams & Bray Construction Company the sum of $600 as further earnest money under the terms of the agreement; by reason of the terms of the contract relative to the consideration of the contract of sale the defendants, Swims, Williams & Bray Construction Company retains the $600; that demand has been made on both defendants to return said sums to the plaintiffs and both defendants have failed and refused, and now fail and refuse, to make refund of the monies to the plaintiffs; the sum of $2,100 should be returned to the plaintiff by the defendants named 'all in equity and good conscience.'

The three other counts of the petition were identical with the first, except that each contained a single paragraph not included in the first count. Each of these paragraphs were numbered 11 of the count in which it was included. Paragrah 11 averred the inability of the plaintiffs to obtain a loan in accord with the terms of the purported sales contract from a 'lending institution' in which they had confidence, and for this reason the contract was impossible to perform. Paragraph 11 of Count 3 alleged: 'That the plaintiffs were and are unable to obtain a loan on said property on terms suitable to themselves, and for this reason said purported contract is impossible of performance.'

Paragraph 11 of count 4 reads: 'That the lands described in the purported contract, and as first viewed by your plaintiffs and as first outlined and described to your plaintiffs by the defendants are not now the lands which defendants desire your plaintiffs to accept and which defendants offer to deed to your plaintiffs. That there has been no meeting of the minds on the present dimensions of the land which the defendants own and for this reason, the purported contract is impossible of performance.'

The prayers of the petition were for process, the recovery of $2,100 with interest thereon from July 18, 1957, at seven percent, and such other and further relief as the plaintiffs were entitled.

The answer of Robert C. Dell, Jr., set up that Robert C. Dell was deceased, and that he was the sole proprietor of the Bob Dell Realty Company, denied the paragraph of the petition in which it was alleged that the plaintiffs were entitled to recover $2,100 plus interest from July 18, 1957, both admitted and denied that the contract attached as an exhibit to the plaintiffs' petition was executed; alleged that the defendant could neither admit nor deny that Swims, Williams & Bray Construction Company received the $600 alleged in the petition; and explained his acceptance and retention of the $1,500 in the language: 'In further answer...