Kenney v. Walden

• Decision Date: 24 July 1922
• Docket Number: 13125.
• Parties: KENNEY v. WALDEN ET AL.
• Court: Georgia Court of Appeals

113 S.E. 61

28 Ga.App. 810

KENNEY v. WALDEN ET AL.

No. 13125.

Court of Appeals of Georgia, Second Division

July 24, 1922

Syllabus by the Court.

It is the general rule that a proper payment to the authorized agent of a disclosed principal, which has not been induced by fraud, accident, or mistake, is to be treated as having been made to the principal, so that, should the person making the payment ultimately become entitled to its return, his remedy is against the principal, irrespective of whether or not the money has been actually turned over to the principal by the agent thus receiving it for him and in his stead. Echols v. Howard, 17 Ga.App. 49, 51, 86 S.E. 91; 2 Corpus Juris, 821. An apparent, but not a real, deviation from this general rule is recognized in cases where a conditional deposit in the nature of earnest money is turned over to a sales broker in order to bind a conditional contract of purchase and sale pending the removal of the conditions, but where the deposit, under the terms of the agreement, is to be returned to the prospective purchaser in case the proposed sale falls through. In such a case, if the conditional contract of purchase fails without fault of the purchaser and he thereby becomes entitled under the contract to a return of the deposit, he can recover it back from the agent if it be shown that he thus continues to hold it, or that he continued to hold it after notice that the principal was no longer entitled to receive it. McDonald v. Napier, 14 Ga. 89 (2); Zapf Realty Co. v. Brown, 26 Ga.App 443, 106 S.E. 748; 9 C.J. 675, § 166. This is true for the reason that the principal is no longer entitled to receive it, and the agent is therefore no longer authorized to deliver it over or to hold it. The original deposit of the earnest money not amounting to a payment such as would pass title to the principal, the conduct of the agent in actually withholding it from the principal until he can no longer properly turn it over has the same legal effect as though there had been an agreement on his part so to do.

In the instant case the agreement sued on, signed "Frank J Kenney, Agent for Estate of Mary F. Kavanaugh," was an individual undertaking. Knox v. Greenfield's Estate, 7 Ga.App. 305, 66 S.E. 805; Johnson v. Estate of Sam Farkas, 22 Ga.App. 539, 96 S.E. 392; 1 Enc. Dig. Ga. Rep. Cum. Supp. 313 (III). No agency for any legal entity being disclosed, an action based on the agreement was for this further reason properly maintained against the defendant as an individual.

Where a contract for the future sale of property provides that the title to the premises is to be...