W. B. Leedy & Co. v. Shirley, 37157

• Decision Date: 03 July 1958
• Docket Number: No. 1,No. 37157,37157,1
• Parties: W. B. LEEDY & COMPANY v. W. D. SHIRLEY
• Court: Georgia Court of Appeals

Page 580

104 S.E.2d 580

97 Ga.App. 801

W. B. LEEDY & COMPANY v. W. D. SHIRLEY.

No. 37157.

Court of Appeals of Georgia, Division No. 1.

July 3, 1958.

Syllabus by the Court

The judge erred in overruling the general demurrer to the petition.

W. D. Shirley filed a suit against W. B. Leedy & Company, Inc., for money had and received.

Count 1 of the petition alleged in part that: the defendant is indebted to the plaintiff in the sum of $3,562.50 plus interest at the rate of 7% per annum from November 19, 1956, by reason of the facts hereinafter set forth; on March 27, 1956, and at all times herein referred to the defendant, W. B. Leedy & Company, Inc., was engaged in the business of procuring loan commitments and selling the same to builders for the purpose of financing the construction of new homes in the Atlanta area; on March 27, 1956, the defendant, acting through its agents, servants, and employees, sold and delivered to the plaintiff a loan commitment in the amount of $397,350 for the purpose aforesaid; at the time and in consideration for and in payment of the commitment, the plaintiff paid the defendant the sum of $3,973.50; the terms of the transaction between them provided and contemplated that the plaintiff would secure purchasers for homes that he was building and had for sale and that the defendant would procure loans on the homes upon application made to the defendant by the plaintiff in behalf of such purchases; the terms and provisions of the commitment provided that the defendant would repay the plaintiff an amount equivalent to 1% of the loan on each sale made by the plaintiff and for which a loan was provided by the defendant, thus giving the plaintiff an opportunity to recoup the $3,973.50 paid by the defendant to the plaintiff; on October 29, 1956, pursuant to the commitment, the defendant procured a loan on a sale made by the plaintiff to William Franklin Walker, Jr., on which transaction the defendant paid the plaintiff his 1%, amounting to $137; on November 9, 1956, pursuant to the commitment, the defendant procured a loan on a sale made by the plaintiff to Robert Fred Brown, on which transaction the defendant paid the plaintiff his 1% amounting to $137; on November 19, 1956, pursuant to the commitment, the defendant procured a loan on a sale made by the plaintiff to Clifford H. Skipper and Jessie D. Stipper, on which transaction the defendant paid the plaintiff his 1%, amounting to $137; during August and September 1956, the plaintiff offered applications for loans pursuant to the commitment for Thomas Randolph Adderholt and Marvin Thomas Griffin and submitted to the defendant in connection with such applications credit reports on the applicants; notwithstanding the applicants were good credit risks, the defendant arbitrarily refused and declined to procure loans pursuant to the terms of the commitment, and announced to the plaintiff that the defendant was not going to accept any more loan commitments at all for the plaintiff pursuant to the commitment; the action and refusal on the defendant's part was arbitrary and unreasonable and in bad faith and notwithstanding the defendant's failure to accept any more loan applications from the plaintiff, the defendant refused to refund the plaintiff the difference between the $411 which the defendant had paid the plaintiff pursuant to the commitment and the $3,973.50 which the plaintiff had paid the defendant for the commitment; the sum for which the plaintiff sues, $3,562.50 is the difference between $3,973.50 which the plaintiff paid the defendant and the $411 which the defendant paid back to the plaintiff; although the plaintiff has demanded that the defendant return to his the sum of $3,562.50, it has failed and refused and still fails and refuses to do so and is holding the money which it is not justly entitled to hold and which in equity and good conscience it is bound to refund to the plaintiff.

Count 2 of the petition alleged in part that: on March 27, 1956, the defendant sold to the plaintiff what purported to be a loan commitment for the purposes aforesaid in the amount of $397,350, for which on said date the plaintiff paid the defendant the sum of $3,973.50; said purported commitment, according to its terms provided that it would expire automatically on March 10, 1956, if the defendant had not been notified that it had been accepted on March 27, 1956, when the plaintiff paid the defendant the sum of $3,973.50 for the purported commitment, the commitment had not been accepted by the plaintiff on or prior to March 10, 1956, and the commitment had thus by its own terms already automatically expired at the time the plaintiff paid the defendant the sum of $3,973.50 for it; under the facts and circumstances aforesaid, the defendant, on March 27, 1956, when it accepted the plaintiff's $3,973.50 did not bind itself to do anything, as the commitment had by its own terms already expired, and the plaintiff's promise to pay the defendant the sum of $3,973.50 was a nudum pactum, or naked promise, without any consideration moving to the plaintiff; since said date of March 27, 1956, and up to November 19, 1956, the defendant repaid to plaintiff $411 of the sum of $3,973.50, leaving a balance in defendant's hands of $3,562.50, which the defendant fails and refuses to pay the plaintiff; the retaining by defendant of the sum of $3,562.50 from the plaintiff and failing to pay him the sum, under the facts and circumstances aforesaid, constitutes bad faith on defendant's part, and the holding and retaining of money which it is not justly entitled to hold and which in equity and good conscience it is bound to refund to the plaintiff.

The defendant filed general and special demurrers to the petition, which were overruled. The defendant excepts and the case is here for review.

Crenshaw, Hansell, Ware & Brandon, R. W. Crenshaw, Jr., Atlanta, for plaintiff in error.

Claude R. Ross, John L. Westmoreland, Sr., John L. Westmoreland, Jr., Atlanta, for defendant in error.

QUILLIAN, Judge.

1. Neither count 1 nor count 2 states a cause of action. The basis of these actions, whether for breach of contract or for money had and received, even assuming the latter would lie when recovery for a breach of the written contract would fully compensate the plaintiff, is a commitment to purchase group loans. This contract is as follows 'W. B. Leedy & Company, Inc.

Birmingham, Alabama

'Commitment to Purchase Group Loans,

'February 24, 1956

'Cheek & Troutmen, Builders,

160 Westminister Drive

FHS No.

Atlanta, Georgia

VA No. CA-89090

'You are advised that we have approved for purchase loans submitted by you to us to be insured by the Federal Housing Administration or guaranteed by the Veterans Administration in keeping with its existing regulations or amendments thereto, to be executed by you or approved owner occupants, securing the aggregate principal amount of three hundred ninety-seven thousand dollars three hundred fifty dollars if closed in the names of owner occupants approved by this company. Loans to bear interest at the rate of 4 1/2% payable as to principal and interest in equal monthly instalments for terms not to exceed 25 years plus monthly deposits for taxes, hazard insurance and mortgage insurance as estimated by us. If prior to disbursement the allowable rate of interest is increased by the F.H.A. and Veterans Administration or either, then any loans not closed as of that date are to be disbursed by us at the increased interest rate.

'Loans in keeping with the following schedule are to be secured by valid first liens upon real estate situated in the State of Georgia County of DeKalb:

'See CRV attached for sales prices.

'(Rubber stamp)

Dept. : Improvement

O.K. by WOJ

Page ent. 3-27-56

Date Paid 3-27-56

Check No. 118

$3,973.50

'Our approval of these loans is subject to your compliance with the following:

'1. Furnish unqualified final FHA or VA compliance inspection report.

'2. The security instrument shall be a first lien on the fee-simple title satisfactory to us. We shall be furnished, without expense to us, with a title policy on a form and by an insurer approved by us, with a complete survey showing the lot lines and location of all buildings. Title, survey and all papers must be approved by us before the loan proceeds are disbursed.

'3. At the time the loans are closed, we shall be furnished with fire insurance, and such other kinds of insurance, in such companies, forms and amounts as we require. The policies with mortgage clauses attached are to be delivered to and held by us.

'4. All taxes and assessments to be paid in full prior to or at the time the loans are closed.

'5. At the time each loan is closed there shall be deposited with us an amount which we estimate to be sufficient to cover the accrued taxes, both general or special, the expired portion of the hazard insurance premium and F. H. A. mortgage insurance premium when loan is to be insured by the F. H. A.

'6. Satisfactory appraisals by approved and designated appraiser of Veterans...