Stokes v. Walker , 21 Ga. App. 630 ( 1918 )

Jenkins, J.

(After stating the foregoing facts.) Counsel for the plaintiff contends that the legal effect of the contract sued upon was merely to constitute Walker the agent of the plaintiff, Stokes, for the purpose of selling the land, and, as compensation for his services, he was to receive half of the profits arising from the sale of the land, after paying off the Adams & Co. debt, and that, since no terms of sale are prescribed by the contract, in the absence of any agreement that Walker should sell upon a credit, the contract means that he should sell for cash; and that when Walker caused the legal title to be transferred from Adams & Co. to Vickers he thereby became immediately liable to Stokes, and it is immaterial to Stokes whether the sale to Vickers was for cash or upon credit, and the taking of the notes by Walker was, so far as Stokes was concerned, the equivalent to payment of the purchase price, and the net profits immediately accrued. We can not agree with this contention. While it is true that an agent empowered to sell for cash only has no authority to extend credit (Americus Oil Co. v. Gurr, 114 Ga. 624, 40 S. E. 780; Chapman v. Americus Oil Co., 117 Ga. 881, 45 S. E. 268), we do not.think that under the contract here involved the defendant was merely constituted the broker or sales agent of the plaintiff to sell the property for him; but, since the title itself to the property was passed by the plaintiff into defendant, and paid for by the latter, the only remaining requirement of the contract was that the defendant account to the plaintiff for half of the net profits accruing from a resale of the property, and, since no limitation as to the terms of the resale was made, none can be supplied, except that the defendant must exercise entire good faith in the use of his discretion. See Rogers-Ruger Co. v. McCord, 115 Wis. 261 (91 N. W. 685). So far as appears from the contract, Walker might sell in parcels and on various periods of credit; he might find it advisable to sell, in part at least, for something other than money, which in fact it appears that he did do, having taken as part payment a deed to 35 acres of other land, valued at $1,500. It is a well-settled principle of law that, in the absence of an express agreement to the contrary, promissory notes are not payment until themselves paid (Civil Code of 1910, § 4314; Brantley Co. v. Lee, 109 Ga. 478, 34 S. E. 574); and unless the notes can be considered as payment, the peti-' tion fails to show where any net profits ever accrued to Walker. The term “net profits,” as used in the contract sued on, has been construed to mean the gain that accrues after deducting losses and expenses. Tutt v. Land, 50 Ga. 339, 350; 5 Words and Phrases, 4781. In the light of the situation disclosed by the petition, the parties must have used the term “net profits” in the sense of the money, or its equivalent, actually received by Walker over the price paid by him to Adams & Co., after deducting any expenses or losses, and his duty to pay would not, therefore, arise unless it be shown that he reduced to money any such proceeds for the sale, or appropriated them to his own use. We do not think that the contract contemplated that the defendant should be bound to pay money until he had received it. Upon such construction of the agreement, plaintiff could not compel Walker to forestall or assume the contingencies of any credit he might in good faith find it necessary to give a purchaser, but must wait until in due course he had collected the money. This situation could in no wise be modified merely by the fact that such credit was evidenced by promissory notes payable to Walker. The giving of such notes affected no change so long as he did not convert them to his own use, but merely held them awaiting collection at maturity. See' Eogers-Euger Co. v. McCord, supra. The petition is not based upon a profit having accrued to defendant over and above the $3,831.54 paid by Walker to Adams & Co., by reason of the $900 received in cash, together with the property valued at $1,500, and •the valuation of the land as bought in by defendant at the sale had under the judgment obtained on the notes. The petition does not show at what price the land was thus bought in. The petition for the recovery of the net profits is based specifically upon the amount represented by the notes given for the property on its resale, and not for the amount shown to have been realized therefrom. Under our view of the law, the petition failed to show the realization of any net profits, and the court therefore did not err in sustaining the demurrer and dismissing the action.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.