Rush v. Autry , 210 Ga. 732 ( 1954 )

210 Ga. 732 (1954) 82 S.E.2d 866

RUSH
v.
AUTRY et al.
J. L. TODD AUCTION CO.
v.
AUTRY et al.

18635, 18636.

Supreme Court of Georgia.

Submitted June 16, 1954. Decided July 13, 1954. Rehearing Denied July 27, 1954.

Matthews, Maddox, Walton & Smith, for J. J. Rush.

Parker, Clary & Kent, J. M. Grubbs, Jr., for C. T. Autry.

Clinton J. Morgan, Andrews & Covington, for J. L. Todd Auction Co.

HAWKINS, Justice.

1. Paragraph 12 of the petition as amended sought to charge the defendants with fraud, in that it alleged that at the time of the auction and sale the auctioneer was selling tracts and parcels of the defendant Rush's land at certain prices per acre; that all of the several sales had auctioned off 40-acre tracts which had been selling for the approximate price of $1,500 per tract or parcel of land; that the auctioneer placed at auction the tract or parcel of land claimed to have been purchased by the plaintiff without informing him or the persons in attendance that this tract or parcel of land contained more than 40 acres, and proceeded to auction the same off by the acre, and plaintiff bid on the same by the acre; that after the auction was completed, and after the auctioneer's memorandum to authenticate the sale was executed and after plaintiff had paid the sum of $6,000, the defendant auctioneer informed plaintiff that he had bid upon approximately 300 acres of land, rather than 40 acres, and both defendants still insist that the plaintiff purchased 300 acres of land; that this information was withheld from him until after the payment of $6,000 of the purchase price and the signing of the memorandum; that such conduct on the part of the auctioneer, participated in by the defendant Rush, constituted a fraud upon the plaintiff, and plaintiff seeks a decree from the court that the transaction is unenforceable against him. Held:

(a) Such allegations are insufficient to charge any fraud. The very terms of the instrument signed by the plaintiff refute the allegation that he did not know the amount of land bid in by him until after he had paid a part of the purchase price and signed the instrument. The instrument itself purports to obligate him to pay $37,196; he paid in cash $6,000, and could not, in the light of these facts, have thought he was only buying 40 acres at a value of about $1,500. Eliopolo v. Eicholz, 161 Ga. 823 (131 S. E. 889). It appears from the petition that the sale took place on the premises. It is not alleged that the defendants made any misrepresentations as to the amount or character of land offered for sale, but only that they failed to inform the plaintiff as to the number of acres included therein. In Elliott v. Dolvin, 34 Ga. App. 788 (131 S. E. 300), it is held that, where one purchasing real estate has the opportunity, as the plaintiff here did, of examining it before buying, but, instead of doing so, he voluntarily relies upon the statements of the vendor concerning the character and value, the contract will not be rescinded or set aside, or the purchase price of the land abated, because of the falsity of such statements, unless some fraud or artifice was practiced by the vendor to prevent such examination; and that this is true even though the vendee in buying the land may have acted upon the misrepresentations of the vendor or his agents. See also Stone v. Moore, 75 Ga. 565; Grant v. Maxwell, 160 Ga. 612 (128 S. E. 803); Brim v. Couch, 184 Ga. 310 (191 S. E. 94); Karpas v. Candler, 189 Ga. 711 (2) (7 S. E. 2d 243). The trial court erred in overruling the demurrers to paragraph 12 of the petition as amended.

2. While the petition refers to the instrument here involved as both an auctioneer's memorandum and a sales contract, it is not an auctioneer's memorandum such as is contemplated by Code § 96-114, for it is not signed by the auctioneer, but it purports to be a contract for the sale of land entered into between and signed by both the seller and the purchaser. Whether it be one or the other, it falls within the statute of frauds which requires that all contracts for the sale of land shall be in writing. Code § 20-401; White v. Crew, 16 Ga. 416 (3); Seymour v. Nat. Bldg. & Loan Assn. of Montgomery, 116 Ga. 285 (42 S. E. 518, 94 Am. St. R. 131); Pierce v. Rush, ante, p. 718. In order to be sufficient to satisfy the statute, the writing must cover the entire contract. Lester v. Heidt, 86 Ga. 226 (12 S. E. 214, 10 L. R. A. 108); Corbin v. Durden, 126 Ga. 429 (55 S. E. 30).

3. While the contract here involved disclosed the purchase price and the amount of the cash payment, its provisions, "Balance on terms: $31,196 payable as follows: Bal. to be agreed on by Mr. Rush and Mr. Autry," are so indefinite, vague, and uncertain as to render the contract invalid and unenforceable. Lester v. Heidt, supra; Crawford v. Williford, 145 Ga. 550 (89 S. E. 488); Trust Co. of Ga. v. Neal, 161 Ga. 965 (132 S. E. 385). And payment of part of the purchase money is not alone sufficient part performance as will take the case out of the statute of frauds. Rhyne v. Mayhugh, 156 Ga. 243 (119 S. E. 522); Harris v. Underwood, 208 Ga. 247 (66 S. E. 2d 332); Pierce v. Rush, supra.

4. Where, as here, the amount of the purchase price of the property and the cash payment as fixed by the contract are certain and definite, but the terms of the payment of the balance of the purchase price are indefinite and uncertain, the writing is not a contract, and imposed no rights or liability; and the defendant Rush, to whom the cash payment was made, has no legal right to retain it, and an action for money had and received may be maintained by the owner of the money against the one to whom it was paid. Lightfoot v. King, 25 Ga. App. 80 (102 S. E. 468). While it was held in the Lightfoot case that, where money is paid to an agent and is retained by him, the owner of the money may, at his option, and before settlement is made by the agent with his principal, maintain an action against either the agent or the principal, or both, no such state of facts exists in the instant case, for the money was paid to the principal, and not to the agent. The mere fact that the principal paid a portion of the money to the agent for service rendered to the principal by the agent would not authorize the plaintiff to proceed against the agent. Home Realty Corp. v. Morrow, 27 Ga. App. 385 (108 S. E. 481); Graves v. Carter, 208 Ga. 5 (2) (64 S. E. 2d 450). The petition failed to allege insolvency on the part of the principal, fraud, or any other fact which would authorize a court of equity to trace the funds so paid to the principal into the hands of an agent, and a recovery by the owner against the agent.

5. While the plaintiff's petition failed to state a cause of action for any equitable relief, under the foregoing rules it does state a cause of action for money had and received against the defendant Rush, and the trial court did not err in overruling that defendant's general demurrer to the petition (Lucas v. Neidlinger, 210 Ga. 557 (5), 81 S. E. 2d 825), but did err in overruling the general demurrer of the defendant J. L. Todd Auction Company.

Judgment affirmed in part and reversed in part in case No. 18635; judgment reversed in case No. 18636. All the Justices concur.