Fraser v. Neese, (Nos. 5432, 5433.)

• Decision Date: 25 February 1927
• Docket Number: (Nos. 5432, 5433.)
• Citation: 163 Ga. 843,137 S.E. 550
• Parties: FRASER. v. NEESE. NEESE. v. FRASER.
• Court: Georgia Supreme Court

163 Ga. 843

137 S.E. 550

FRASER.

v.NEESE.

NEESE.

v.FRASER.

(Nos. 5432, 5433.)

Supreme Court of Georgia.

Feb. 25, 1927.

Rehearing Denied March 3, 1927.)

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by M. M. Neese against W. B. Fraser and others. Judgment for plaintiff, defendant named brings error, and plaintiff files cross-error. Affirmed on main bill; cross-bill dismissed.

M. M. Neese instituted an action against Walter B. Fraser, R. It. Collins, and the Citizens' & Southern Bank. The petition alleged that Fraser, being owner of a stated number of acres of land located in Florida, employed petitioner as his agent to sell the land, agreeing to pay him 5 per cent, commission; that petitioner proceeded to negotiate with Collins, a resident of Florida, with whom he entered into a contract that, upon resale of the property by Collins, petitioner should receive one-third of the difference between the price paid to Fraser and the amount obtained by Collins on resale; that petitioner fully informed Fraser as to his contract with Collins, and furnished money to Fraser for his expenses in going to Florida and seeing Collins; that, after petitioner had thus brought Fraser and Collins together, it was ascertained that Collins and his associates were ready, able, and willing to purchase the land at a stated price,

5 per cent, of which would yield to petitioner a stated amount for his commissions; that Fraser and Collins then entered into a conspiracy to conclude the trade between themselves directly, for the purpose of avoiding payment to petitioner of his commissions on that sale, and also the above-mentioned profits to which petitioner would be entitled from Collins on resale of the property; that the

'sale was actually agreed upon between Fraser and Collins; that Collins is effecting a resale to Lynn & Co. at a stated advanced price, to one-third of which petitioner is entitled; that in the agreement with Lynn & Co. it was provided that a stated sum constituting the initial payment should be paid through the Citizens' & Southern Bank; and that that institution is now in possession of a check for said amount. The prayers were for a judgment against Fraser and Collins, respectively, for the amounts alleged to be due by them; for injunction to prevent them from in any wise changing the contract; that the bank be directed to hold the money so deposited with it, and any other money that might come into its hands in carrying out the contract of resale; and for general relief.

The petition was filed on July 16, 1925, and made returnable to the September term of the superior court. Each of the defendants was served. On September 16, 1925, Neese as first party and Fraser as second party signed an agreement, which, after reciting the pendency of the suit and the desire of the parties to avoid litigation, declared:

"That, for and in consideration of the benefits accruing hereto to the respective parties, it is agreed as follows: (1) The present status of the said suit, being No. 65092 in Fulton superior court, shall remain unchanged, and it shall not be necessary for the present for Walter B. Fraser to file any pleadings in said case, it Being understood that no default will be entered in said case until after the expiration of 90 days from this date. (2) Said second party agrees that, should the trade for the real estate referred to in said petition not be consummated, then after the expiration of 90 days, as hereinabove provided, said Marvin M. Neese shall be at liberty to prosecute said suit against said second party, said second party having the right to file and urge any defense thereto that he might have as of this date. (3) Said second party agrees to use his best efforts to put through said real estate deal, and upon doing so agrees to pay to said first party the sum of $2,700, subject, however, to the following terms and conditions: (a) Said $2,700 is understood to be, for the purpose of this compromise agreement, the primary obligation of R. R. Collins, and is to be paid by said Collins to said first party out of his commissions or overage that said Collins expects to realize in turning over said property. This overage is based on the agreed purchase price of said property and amounts to $8,100. (b) In the event that said Collins does not pay to said first party said sum of $2,700 within 10 days after the closing of said trade, the said second party agrees to promptly pay to said first party the sum of $2,700 in cash and take from said first party a transfer of any claim that first party has on said R. R. Collins, (c) Upon the closing of said trade, if it should be necessary to do so, the said first party agrees that the restraining order now existing in the above-stated case, with reference to sum of $5,000 in the possession of Citizens' & Southern Bank, Atlanta, may be modified, so that said sum may be paid to first party, and upon the payment of said sum of $2,700 to said first party, either by said second party or by said Collins, said first party agrees that said suit shall be dismissed at cost of said second party. (4) It is understood and agreed by the said parties that, when said first party receives the said sum of $2,700 in cash hereinabove referred to, he will have no further claim for commission or otherwise against said second party; said second party having agreed with R. R. Collins to assume a certain part of costs, not to exceed $150, in connection with litigation instituted by said Collins in Santa Rosa county, Fla. It is understood that, should said Collins claim an offset on said sum of $2,700 up to the amount of said first party's agreed obligation in connectiontherewith, said amount may be deducted from the sum of §2, 700 hereinabove referred to."

At the September term of court an order was passed designating September 28 as the date for the calling of the appearance docket. No attorney for either party attended the call of the appearance docket. The case was duly called at that time, and, there being no appearance for either of the defendants, the judge marked the case "In default" on the appearance docket. On October 7, a consent order was granted, opening, the default as to the Citizens' & Southern Bank alone. On October 31 an order was granted, allowing the bank time in which to plead. At that time a deputy clerk of the court, believing it his duty to do so, marked out the "In default" entry on the appearance docket, by drawing a line through the words "In...