Dell Et Al. v. Kugel Et Al., 99 Ga. App. 551, 109 S.E.2d 532 (1959)

Status: DECIDED

Docket Number: 37589

Parts: Money had and received. Fulton Civil Court. Bef...

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G. Eugene Ivey, contra.Harry V. Lamon, Jr., Robert L. Marchman, Crenshaw, Hansell, Ware & Brandon, Henry M. Hatcher, Johnson, Hatcher, Meyerson & Irvin, for plaintiffs in error.

1. Where, in a case in the Civil Court of Fulton County, involving more than $300, a bill of exceptions is tendered to the trial judge on January 14, 1959, assigning error on a judgment entered in that court on December 15, 1958, such bill of exceptions is tendered within the requisite thirty-day period (Ga. L. 1956, pp. 3271-3281; Code, Ann., 102-102 (8); Charleston & Western Ry. Co. v. Cottonseed Oil Co., 96 Ga. App. 123 (1) (99 S. E. 2d 446).

3. The petition set forth a cause of action against Robert C. Dell, Jr., for the $1,500 alleged to have been deposited with him (Rogers v. Durrence, 92 Ga. App. 488, 88 S. E. 2d 800), and showed the night of the plaintiffs to recover of Swims, Williams & Bray Construction Company the $600 alleged to have been paid to E. J. Swims, president and agent of Swims, Williams & Bray Construction Company as earnest money under the tends of the contract, which is unenforceable for the reasons stated in Williams v. Gottleib, 90 Ga. App. 438 (1) (83 S. E. 2d 245). See also Morgan v. Hemphill, 214 Ga. 555 (105 S. E. 2d 580).

The appropriate remedy for the recovery from the defendants of the amount for which each was liable was that employed by the plaintiffs, an action for money had and received. Reid v. Hemphill, 82 Ga. App. 391 (61 S. E. 2d 201); Whitehead v. Peck, 82 Ga. App. 391, supra, and Lightfoot v. King, 82 Ga. App. 321, 325 (60 S. E. 2d 802)." Harris v. Ackerman, 88 Ga. App. 128 (1) (76 S. E. 2d 132). This rule is adhered to in Williams v. Appliances, Inc., 91 Ga. App. 608 (86 S. E. 2d 632). It applies with equal force to the allegations of an answer which is in conflict with the facts shown in an exhibit attached to the petition and admitted in the answer to be genuine.

15. However, the answer of Swims, Williams & Bray Construction Company denied receiving the $600 alleged to have been paid that defendant as earnest money, and the answer of Robert C. Dell, Jr., likewise denied receiving that sum.

The ruling in Cornett v. Frederic W. Ziv Co., 93 Ga. App. 840 (2) (93 S. E. 2d 188) applicable here is ". . . the denial of any paragraph or portion of a paragraph alleging a fact essential to the plaintiff's recovery sets forth a valid, issuable defense; hence an answer containing such denial is not subject to general demurrer."

Thus it appears that the answers each set up an issuable defense sufficient to prevent the case's being marked in default, or final judgment being entered on the pleadings.

16. The cross-bill failed to show a right of the defendant Swims, Williams & Bray Construction Company to recover any amount of the plaintiffs for several reasons.

  (a) The cross-action undertook to set up as a basis of recovery a verbal contract of conflicting terms to the written contract between the parties. Board of Education of Glynn County v. Day, 128 Ga. 156, 166 (57 S. E. 359); Stonecypher v. Georgia Power Co., 183 Ga. 498, 499 (3) (189 S. E. 13). The defendant Swims, Williams & Bray Construction Company in their answer explicitly denied that the written contract between the parties was invalid, thus electing to stand upon that contract. The written contract upon which the defendant chose to stand contained the clause: "This contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. No representation, promise, or inducement not included in this contract shall be binding upon any party hereto."

  (b) The cross-bill set up no right of recovery because the verbal contract it undertook to plead was within the statute of frauds which requires contracts for the sale of land to be in writing. Code 20-401 (4); Stanaland v. Stephens, 78 Ga. App. 68 (3) (50 S. E. 2d 258).

  (c) The cross-action did not disclose the terms or provisions under which the verbal contract contemplated the sale of the realty would be made, such as when the sale would be consummated or whether for cash or credit.

The trial judge did not err in dismissing the cross-action, but erred in striking the defendants' answers, and in entering final judgment for the plaintiffs.

Judgment affirmed in part and reversed in part. Felton, C. J., and Nichols, J,, concur.