Zapf Realty Co. v. Brown

Luke, J.

The plaintiff’s petition substantially alleged, that the defendant was in possession of $514 belonging to plaintiff, which the defendant was in equity and good conscience bound to repay him on an implied promise so to do; that on March 1, 1919, the plaintiff, through the defendant, entered into a contract with one Cobb, whereby he agreed to purchase from Cobb described lands; that the plaintiff then and there deposited with the defendant $514 to bind a sale until January 1, 1920; that the said contract provided that the plaintiff should have a certain time to examine the title to the land, and that if the title was not merchantable, and could not be so made within a reasonable time, the said cash payment was to be returned to the plaintiff and the trade rescinded; that at the time of filing the petition the title was not merchantable, because Cobb had no title to the land, and it was incumbered with a security deed, securing a debt of $4,000; that a reasonable time had elapsed for the title to be made merchantable, and that it had not been so made; and that the defendant refused to repay $514 in its possession. The suit was filed October 7, 1919.

A contract dated August 1, 1919, signed by the plaintiff and accepted in writing by Cobb, a copy of which was. attached to the petition, provided- that the plaintiff should pay a fixed sum for the land, $514 of which was to be paid in cash, an additional amount on January 1, 1920, and the balance in equal annual installments an January 1 of each year, with the privilege of paying the full balance of the purchase-price on the date fixed for the payment of any installment. The contract further stated that the plaintiff had deposited with the defendant “ for good will $514.00 as a part of the purchase-money to bind this trade until January 1, 1920, until September 5, 1919, time being allowed for the examination of the title by my attorney;” and “if said title is merchantable, I agree to make settlement as above stated, but if said title is not merchantable, and cannot be made merchantable within a reasonable length of time, the said cash payment is to be returned to me and the trade canceled. Time is the essence of this contract. ”

The plaintiff was allowed to amend his petition by alleging that the contract was void and not binding, because his signature to it was procured by fraud, in that the defendant represented to him that there were no incumbrances upon the land, whereas at the time of the contract it was incumbered by a certain security deed given by the then holders of the title to the Life Insurance Company of Virginia, and that, upon discovery of this fact, he offered to rescind his contract and demanded the return of his money. The defendant denied the material allegations of the petition, and also pleaded that it had until January 1, 1920, or a reasonable time thereafter, to make the title merchantable, and that it was ready and able to do so.

An action for money had and received lies, in all cases where another has received money which the plaintiff, ex sequo et bono, is entitled to recover and which the defendant is not entitled in good conscience to retain. Whitehead v. Peck, 1 Ga. 140 (3); Knight v. Roberts, 17 Ga. App. 527 (87 S. E. 809). Under this, broad rule, the petition clearly sets out a cause of action. The amendment setting up that the defendant represented the land to be free from incumbrances alleged a fact tending to show that the plaintiff was entitled to recover money which the defendant should not in good conscience keep. This amendment merely amplified the cause of action as laid, and it was not error to allow it. The contract attached to the petition is not aptly expressed, but, reasonably construed, it in effect states that the money sued for was deposited with the defendant to bind the trade until January 1, 1920; that the plaintiff had from August 1, 1919, the date of the contract, until September 5, 1919, to investigate the title to ascertain ij: it was merchantable; and that if it could not be so made within a reasonable time, the cash payment was to be returned to the plaintiff, time being of the essence of the contract.

While it' appears from the evidence that the plaintiff, before suit, did state that he demanded his money back and withdrew from the trade, and while the evidence further shows that he stated during the month of September that he was ready to make a settlement in full, he further said that he would not do so, because “ of outstanding obligations.” The plaintiff had from August 1, 1919, until September 5, 1919, to examine the title. On September 3, 1919, he notified.the defendant of his objections to the title, and on October 7, .1919, he brought his action. The security deed outstanding and dated March 1, 1917, was not canceled of record until December 8, 1919. On December..9, 1919, certain parties conveyed the land by warranty deed to- one Parnell, and on December 15 Parnell conveyed the land to Cohb. On or about December 15, 1919, the defendant presented to the plaintiff a deed from Cobb, with draft attached.

• It therefore clearly appears .that Cobb was not. in a situation to - make a merchantable title to the plaintiff prior to December 15, 1919. The jury by their verdict -sustained the plaintiff’s contention that the title was not merchantable and not so made within a reasonable time, and, under the evidence, this court cannot say that the jury’s view-of the matter was not correct.

Judgment affirmed.

•Bloodworth, J.,- concurs. Broyles, C. J., dissents.