Vanguard Properties Development Corp. v. Murphy, No. 51048
| Decision Date | 12 November 1975 |
| Docket Number | No. 1,No. 51048 |
| Citation | 221 S.E.2d 691,136 Ga.App. 519 |
| Parties | VANGUARD PROPERTIES DEVELOPMENT CORPORATION v. Thomas MURPHY et al |
| Court | Georgia Court of Appeals |
McLarty & Aiken, Paul M. McLarty, Jr., Atlanta, for appellant.
Hansell, Post, Brandon & Dorsey, Paul Oliver, Atlanta, for appellees.
This is an appeal from a suit upon a promissory note. The case was tried before a judge without the intervention of a jury. The defendant Murphy was successful in his defense of a total lack of consideration and appellant, Vanguard Properties Development Corporation, plaintiff below, brings this appeal from the order of the trial court granting verdict and judgment for defendant, appellee Murphy, and dismissing appellant's suit.
Appellant, Vanguard Properties Development Corporation, is a real estate developer primarily engaged in the construction business. On July 31, 1973, appellant obtained a conventional advance commitment for the exclusive use of $1,000,000.00 in mortgage money from a mortgage banker. The commitment was for a period of 10 months. In payment for this commitment, appellant Vanguard paid the normal fee of 1% or $10,000.00. Appellant dealt directly with appellee Murphy who at the time was an agent and employee of the mortgage banker. At appellant's insistence, the commitment agreement contained a provision allowing appellant to assign the unused portion of the commitment to another 'builder,' but the mortgage banker retained the power to approve or disapprove any prospective builder. The theory (and practical application) of the commitment who that Vanguard would find a builder who wished to borrow building funds at reasonable interest rates. Vanguard would bring this builder to the mortgage banker and if approval was obtained, the banker extended the funds but at favorable interest rates fixed by Vanguard's July, 1973, commitment.
Subsequent to the issuance of this commitment, appellee Murphy terminated his connection with the mortgage banker and formed Commitment Associates, Incorporated, a mortgage brokerage business. Vanguard apparently already had a $2,000,000.00 commitment from another mortgage banker at more favorable interest rates. For whatever reason, Vanguard found itself with a surplus of building funds and unable to find builders willing or interested to utilize all or any part of the $1,000,000.00 commitment. Vanguard then approached Murphy in his business as a mortgage broker and sought the assistance of Commitment Associates in locating interested builders. Murphy was successful in locating two builders who utilized $410,000.00, leaving a surplus of $590,000.00 of Vanguard's $1,000.000.00 commitment. Thereafter, Murphy also began to have difficulty in finding interested builders. In January, 1974, Murphy signed an agreement with Vanguard accepting by assignment the remaining $590,000.00 of Vanguard's commitment. Murphy paid the standard 1% for the commitment but paid the fee in the form of a promissory note for $5,900.00. This note was due on May 1, 1974.
Murphy obtained several builders and around the end of February, 1974, brought loan contracts to the mortgage banker, Murphy's old employer. The mortgage banker relied upon that provision of the original commitment which allowed Vanguard to assign to another 'builder.' Murphy was a mortgage broker and not a builder, therefore the mortgage banker would honor no further contracts. The entire $590,000.00 was assigned to Murphy so far as the mortgage banker was concerned, and there were no remaining funds to be allocated under the commitment. From the beginning of the assignment, therefore, Murphy was unable to utilize any of the funds. The evidence tends to show that both Murphy and the mortgage banker notified Vanguard of this...
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Murphy v. HOSANNA YOUTH FACILITIES, INC.
...consideration, in the eyes of the law, to sustain a cause of action upon the breach of an agreement." Vanguard Prop. Dev. Corp. v. Murphy, 136 Ga.App. 519, 521, 221 S.E.2d 691 (1975). Even if Hosanna had properly raised its lack of consideration argument, the argument is not The Employment ......
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...871 (2006); Ochs v. Hoerner, 235 Ga. App. 735, 736, 510 S.E.2d 107 (1998) (physical precedent only); Vanguard Properties Dev. Corp. v. Murphy, 136 Ga.App. 519, 521, 221 S.E.2d 691 (1975); OCGA § 13-5-9. "And this is the rule even where[, as here,] the note is under seal or recites that it i......
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...costs of repair. Thus, the requisite elements of a contract were not shown by the record. OCGA § 13-3-1; Vanguard Properties Dev. Corp. v. Murphy, 136 Ga.App. 519, 221 S.E.2d 691 (1975). 2. Plaintiff's second enumeration of error was that the trial court erred in dismissing Count 2, the pro......
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