James Talcott, Inc. v. Roy D. Warren Commercial, Inc., 44855

• Decision Date: 23 October 1969
• Docket Number: No. 1,No. 44855,44855,1
• Citation: 120 Ga.App. 544,171 S.E.2d 907
• Parties: JAMES TALCOTT, INC. v. ROY D. WARREN COMMERCIAL, INC
• Court: Georgia Court of Appeals

Page 907

171 S.E.2d 907

120 Ga.App. 544

JAMES TALCOTT, INC. v. ROY D. WARREN COMMERCIAL, INC.

No. 44855.

Court of Appeals of Georgia, Division No. 1.

Oct. 23, 1969.

Latimer, Haddon & Stanfield, William C. Haddon, Atlanta, for appellant.

Powell, Goldstein, Frazer & Murphy, Wayne Shortridge, Henry Young, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Roy D. Warren Commercial, Inc., a realtor, negotiated for the owner, International Office Park, Inc., a lease of space in its building to Billy Graham Evangelistic Association. A provision was incorporated in the lease by which the owner or lessor 'agrees to pay to agent, Roy D. Warren Commercial, Inc., as compensation for services rendered in procuring this lease 5 percent of all rentals paid by the lessee under this lease. Lessor, with the consent of the lessee, hereby assigns to agent 5 percent of all rentals paid under this lease.' Further provisions were, inter alia, that in the event of a sale of the premises agent would release the lessor upon lessor's furnishing to it an agreement signed by the purchaser assuming lessor's obligations to agent.

Lessor sold the property to International Park Corporation, which assumed the lessor's obligations. Thereafter, International Park Corporation borrowed $2,000,000 from James Talcott, Inc. and, as security therefor, executed to the lender a security deed and an assignment of all leases. The assignment provided that in the event of default in prompt payment of instalments on the loan by the borrower, James Talcott, Inc., might notify the lessees and collect directly from them all of the rentals for application on the debt. There was a default and Talcott notified the lessees, including Billy Graham Evangelistic Association, to make all further rental payments to it. The association did so. Warren demanded of Talcott the 5 percent which lessor had agreed that it should have of the rentals, but Talcott declined to pay, and Warren brought suit to recover in three counts, one for money had and received, another seeking to enforce the agreement to pay the commissions against Talcott as assignee of the lessor, and a third seeking to enforce the agreement against Talcott as a successor in interest. Upon a stipulation of the facts the matter was submitted to the judge without a jury and judgment was rendered for the plaintiff, from which defendant appeals. Held:

1. Plaintiff could recover for money had and received only if it appears that the defendant has received money belonging to the plaintiff which, in equity and good conscience, defendant is not entitled to retain. Whitehurst v. Mason, 140 Ga. 148, 78 S.E. 938; Orient Insurance Co. v. Dunlap, 193 Ga. 241, 17 S.E.2d 703, 138 A.L.R. 916. And see Stern v. Howell, 33 Ga.App. 693(2), 127 S.E. 775. Unless it could be held that the agreement of the lessor to pay to Warren the 5 percent commission followed the lease into the hands of Talcott and bound it, there is no privity and there could be no recovery against Talcott, for it cannot be gainsaid that Talcott received the rentals under an assignment to it and thus under a claim of right.

'All covenants are either real or personal. Those so closely connected with the realty that their benefit or burden passes with the realty are construed to be covenants...