Whatley v. Carpenter , 198 Ga. 408 ( 1944 )

In a suit for specific performance of a contract for the sale of land, where a tender of the purchase-price was made to an attorney who prepared the contract, and the evidence was conflicting as to which of the parties he represented, the defendant in the trial court denying that he was her attorney, it was error to direct a verdict, because there were issues of fact which should have been submitted to the jury.

No. 14959. OCTOBER 7, 1944. E. L. Carpenter filed in Sumter superior court, against Mrs. W. R. Whatley, a petition seeking specific performance of a contract for the sale of land and injunctive relief as to a tenant in possession. The defendant filed an answer denying that she entered into the contract as alleged, and averring that no tender had been made to her or to any person authorized to receive the same.

On the trial, there was undisputed evidence to the effect that A. E. Durham, a real-estate agent, and J. Lewis Ellis, an attorney at law, occupied the same office, and that the latter frequently prepared legal papers for the former. The real-estate agent interested the petitioner in a purchase of the defendant's land, and requested the attorney to prepare a contract of sale. Such paper was drawn in duplicate by the attorney and signed by the petitioner. Subsequently, the real-estate agent brought the defendant to the office. At first she refused to sign the contract, but in a day or so she did sign it in the presence of the attorney. The contract stated that the defendant agreed to sell and the petitioner agreed to buy the premises for the sum of $5000 cash, $300 of which was to be paid on signing the contract, and the balance on or before February 1, 1943.

There was evidence for the petitioner that the defendant employed the attorney, and that he represented her generally; also, that the defendant being absent from her home when the petitioner became satisfied with the title, he tendered a check to the attorney on January 25, 1943, in payment of the balance of the purchase-price, and that the attorney was holding the check for the defendant. The defendant testified that she did not employ the attorney to represent her, and did not authorize him to accept any check or to receive any money for her; that she saw the check for $300 on his desk, but he did not offer it to her, and did not tender her the check for the balance of the purchase-price until after the present suit was filed, which was not within the time provided in the contract. There was also a conflict of evidence as to whether the checks would have been paid had they been presented at the bank, the evidence being that the petitioner did not have as much as $5000 on deposit at any time during the period involved in the contract, but that he had a line of credit. At the conclusion of the evidence, the trial judge directed a verdict in favor of the petitioner. The exception is to this judgment. (After stating the foregoing facts.) A controlling question is whether the attorney who prepared the contract of sale at the instance of the real-estate agent represented the defendant, or whether he represented the petitioner. In other words, was the attorney authorized by the defendant to receive for her either the money or a check. The Code, § 9-606, provides: "Without special authority, attorneys cannot receive anything in discharge of a client's claim but the full amount in cash." As to the right of an attorney generally to accept payment for his client, see: Pease v. Dibble, 57 Ga. 446;Price v. White, 70 Ga. 381; Jackson v. Rome,78 Ga. 343; Sonnebom v. Moore, 105 Ga. 497 (30 S.E. 947);Kaiser v. Hancock, 106 Ga. 217 (32 S.E. 123); Roland v.Roland, 139 Ga. 825 (2, 3) (78 S.E. 249).

If the attorney was the agent of the defendant, the legal aspect of her relations to him and her transactions with him would be different from what they would be in the event that he represented the petitioner. The evidence would have authorized the jury to have found either way as to this question. The undisputed evidence was that the real-estate agent interested the petitioner in the property; and that, without communicating with the defendant, he carried the petitioner to the office of the attorney and the contract was drawn. A check for $300 was left by the petitioner with the attorney. This check was never accepted by the defendant. If the jury believed that the attorney had not been employed by the defendant or had been employed only to prepare an abstract of title, it could not be said that the attorney would have been authorized to accept a check for the purchase-price of the property. Furthermore, if the jury found that the attorney represented the petitioner, then any tender of the purchase-price to the attorney would have been a tender by the petitioner to his own agent.

Under the pleadings and the evidence the court erred in directing a verdict, because there were issues of fact which should have been submitted to the jury.

Judgment reversed. All the Justices concur.