McGinley v. Chappas, 35463
| Decision Date | 27 January 1955 |
| Docket Number | No. 35463,No. 2,35463,2 |
| Citation | 85 S.E.2d 791,91 Ga.App. 418 |
| Parties | T. J. McGINLEY v. Jimmie CHAPPAS |
| Court | Georgia Court of Appeals |
Ralph L. Crawford, Savannah, for plaintiff in error.
Harry P. Anestos, Savannah, for defendant in error. Syllabus Opinion by the Court.
1. An exception to the general rule that proper payment to the authorized agent of a disclosed principal, not induced by fraud, accident, or mistake, is payment to the principal in contemplation of law where suit is brought by the payor for its return, is recognized in cases where a binder or earnest money for the sale of property in turned over to a sales broker during the pendency of a conditional contract of purchase. In such cases, if the money is not turned over by the agent to the principal during a time when the principal is authorized to receive it, the payor, if entitled to its return, may recover it back directly from the agent. Kenney v. Walden, 28 Ga.App. 810(1), 113 S.E. 61.
2. Where, in such conditional contract of purchase, earnest money is turned over to the sales broker to be held by him during the pendency of the contingency, and, upon the determination thereof, to be disposed of as set out in the contract, an escrow agency in the sales broker is created. Where the contract provides that, 'in the event the sale is not consummated for reasons other than default of purchaser, the earnest money is to be refunded to the purchaser,' the escrow agent is not authorized to turn the money over to the seller where the contract of sale is expressly contingent upon the purchaser's ability to obtain a specified mortgage loan, and where he is unable to obtain such loan. In such a case the purchaser has a right to demand the money back from the sales broker, and an action against the seller, who never received the money, will not lie. Carter v. Turbeville, 90 Ga.App. 367, 83 S.E.2d 72.
3. The contracts of sale in this case and in the case of Carter v. Turbeville supra, are identical except as to names, dates, amounts, and property involved. It follows that the plaintiff purchaser here properly brought his suit for money had and received against the defendant sales broker to recover earnest money when the contingency of obtaining a loan, upon which the contract was predicated, failed to materialize. Nor was it necessary, as against demurrer, to allege specifically that the defendant broker had not turned the earnest money over to the seller. Under...
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...broker under these circumstances is an escrow agent. Carter v. Turbeville, 90 Ga.App. 367 (83 SE2d 72) [1954]; McGinley v. Chappas, 91 Ga.App. 418(1) (85 SE2d 791) [1955]. As such, he is the agent of both parties, and no liability attaches from his failure to do anything not required by the......
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