Zapf Realty Co. v. Brown
| Decision Date | 09 March 1921 |
| Docket Number | 11888. |
| Citation | 106 S.E. 748,26 Ga.App. 443 |
| Parties | ZAPF REALTY CO. v. BROWN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An action for money had and received lies in all cases where another has received money which the plaintiff, ex æquo et bono, is entitled to recover, and which the defendant is not entitled in good conscience to retain.
Where a buyer alleges that a realty company had in its possession money deposited with it to bind a client of that company to convey certain land to the buyer, upon condition that the title to the land could be made merchantable within a reasonable time, and that if the title could not be made merchantable within such time the money would be returned to the buyer, an amendment alleging that the company induced the buyer to turn over the money to it by fraudulently representing that the title was free from incumbrances, when as a matter of fact, it had specified incumbrances on it merely amplified the cause of action set out in the petition and was not objectionable, either as setting out a new cause of action or as failing to allege sufficient acts of fraud.
The petition set out a cause of action, and was not subject to general demurrer.
Nor was the petition subject to demurrer upon the ground that the facts alleged did not constitute an implied contract.
The petition was not demurrable upon the ground that it showed that no implied promise to pay arose until January 1, 1920.
A paragraph of the petition which substantially alleges that the defendant admitted a material fact contrary to its interest is not subject to demurrer.
It was not error to strike the plea in abatement alleging that the suit was prematurely brought.
The judge's charge was full and fair, and was not subject to any of the criticisms of it made in the motion for a new trial.
Additional Syllabus by Editorial Staff.
In an action by an intending purchaser of land to recover a deposit which was to be repaid if title could not be made merchantable within a reasonable length of time, whether title made merchantable December 15th was made so within a reasonable time after September 3d, when plaintiff notified defendant of his objections to the title, held for the jury.
Error from City Court of Sandersville; E. W. Jordan, Judge.
Action by J. A. Brown against the Zapf Realty Company. Judgment for plaintiff, and defendant brings error. Affirmed.
The charge of the court was as follows:
Gentlemen of the jury, J. A. Brown has brought an action against the Zapf Realty Company; he sues for money, having a receipt. The plaintiff alleges in 1919, in August, he deposited with the Zapf Realty Company the sum of $514, to be applied to the purchase price of a certain tract of land, provided the title to the land was merchantable, or provided the owner of the land could make good title, and that if the title was not merchantable or made merchantable within a reasonable time then the money was to be refunded by the Zapf Realty Company to him. The plaintiff in this case contends, under the terms of the contract, he had until the 5th day of September, 1919, to look into the title and ascertain the condition of the title; he alleges he found various incumbrances outstanding over the land; he alleges that the Zapf Realty Company and the owner of the land did not within a reasonable time remove these incumbrances, so as to make the title to the land merchantable; he demands that his money be refunded and the defendant declines to return the money, and he now brings his suit for $514. The plaintiff further alleges that this contract was procured from him by fraud; that the defendant's agent represented to him at the time the contract was signed that there was no lien or incumbrance of any character over the land; he alleges if he had known the land was incumbered he would not have entered into the contract, and after ascertaining it was incumbered he demanded his money and thereby to rescind the contract.
The Zapf Realty Company admits receiving the money, but contends that within a reasonable time, as provided by the contract, that the title to the land the plaintiff agreed to buy was made merchantable and put in good shape, and that by the time the plaintiff was required to make his next payment upon the land the title was then in good condition and in merchantable shape. The defendant alleges that the plaintiff really breached the contract.
Gentlemen of the jury, I charge you in this case that you are to ascertain from your knowledge of human nature and the circumstances of this case what was a reasonable time for the Zapf Realty Company to make the title to this land merchantable. Now, if you believe from the evidence in this case that within a reasonable time after September 5th the Zapf Realty Company, or the owner of this land, put the title in merchantable shape, that that was done within a reasonable time, I charge you in this case that the plaintiff could not recover; that the amount so paid by him, $514, would go to the purchase price of the land; that he could not recover. I charge you, however, that if you believe from the evidence in this case that this title was not put into merchantable shape within a reasonable time after September 5th, and after an examination disclosed the incumbrances or liens over the land, if you find it was not put in merchantable shape within a reasonable time, then in this case the plaintiff would have the right to recover, and the obligation would be upon the defendant, the Zapf Realty Company, to refund the deposit of $514 so received. If you believe these are the conditions and facts of the case, then the plaintiff in this case would have the right to recover and ought to recover. If you believe in this case the seller of this land, or the agent of the Zapf Realty Company, made representations that there were no incumbrances upon this land nor liens outstanding against it and if you furthermore believe that the plaintiff, Brown, entered in on that representation in purchasing the land, and you believe the representations were untrue, then I charge you the plaintiff in the case would have...
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