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., 22 Ga. App. 337, 96 S. E. 586), and a motion made in this court to dismiss the writ of error on the ground that the bill of exceptions was not presented to the trial judge within the requisite statutory time is without merit and is denied.
2. If the allegations of the petition do not show the right of the plaintiff to recover the full amount sued for against all of the defendants against whom a default judgment is entered, the judgment shall be set aside.
3. The appropriate remedy where one wrongfully receives and retains the money of another is an action for money had and received.
4. The general rule is that on money paid by mistake, where there is no fraud or misconduct by the party receiving it, interest does not run until after demand. The rule is to the contrary where one obtains and retains possession of another's money mala fides, that is, through fraud, theft, or artifice.
5. In all action for money had and received where more than one person is sued, a joint recovery of the whole amount against all will not be authorized, unless it appears that all received the money jointly. If it was not so received, the plaintiff can only recover from each defendant separately the amount shown to have come into his hands.
6. Though in order to dispose of a case it is not necessary to pass upon a contention, if the contention is likely to be made upon another trial of the case it is not only wise to put the question at rest, but it is now mandatory.
7. The proper order of disposing of demurrers directed respectively against the petition and defensive pleadings, is first to pass upon the demurrers to the petition. However, unless the petition is subject to general demurrer, or valid grounds of special demurrer the sustaining of which would have the effect of striking allegations essential to the plaintiff's right to leave a judgment entered in his favor, the order in which the demurrers are passed upon is immaterial, and the trial court's failure to pass upon the demurrers to the petition is harmless.
8. Voluntary payments made under an invalid contract may be recovered.
9. A payment made under an invalid contract may be recovered whether paid to extend the time of consummating the contract or as earnest money.
10. The allegation that an event occurred is sufficiently definite, when such averment informs the opposite party of sufficient facts to enable him to deny that the event occurred or to explain the circumstances under which it took place.
12. For the reasons stated in division 4, the demurrers to the plaintiffs' prayer for interest are without merit.
13. Grounds of special demurrer technically deficient or that raise a point obviously without merit, will not be discussed.
14. Where there is a conflict between the denial of a fact and all admission of the same fact contained in a pleading, the latter must prevail. The general rule is that allegations in a petition must yield to contradictory facts shown in exhibits attached thereto.
15. The denial of any paragraph of the petition 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 a denial prevents the case being marked in default, or final judgment being entered.
16. A cross-bill which does no more than attempt to set up a verbal contract in conflict with a written contract upon which the pleader relies and in his answer alleges is valid, and to set off without legal or equitable excuse, a claim ex delicto against a cause ex contractu is properly stricken.
Leonard J. Kugel and Rebecca B. Kugel sued Robert C. Dell and Robert C. Dell, Jr., d/b/a Bob Dell Realty Company and Swims, Williams & Bray Construction Company, a corporation, in the Civil Court of Fulton County for money had and received. The petition was in four counts. Count 1 alleged: the plaintiffs are entitled to recover of defendants the sum of $2,100 plus interest at the legal rate from July 18, 1957; on July 8, 1957, the plaintiffs entered into a purported contract with the defendant Swims, Williams & Bray Construction Company by the terms of which the plaintiffs agreed to buy through the defendants, Robert C. Dell and Robert C. Dell, Jr., certain real estate described in an exhibit attached to the petition. The description of the property contained in the exhibit was: "all that tract of land in Land Lot 163, 17th District, Fulton County, Georgia, in Block B, parcel 15, known as 4940 Rebel Trail according to present system of numbering houses and naming streets in Fulton County, Georgia, including all lighting fixtures attached thereto, and all heating, water heating, and plumbing equipment therein, and all other fixtures & appliances."
It was further alleged that on July 18, 1957, the plaintiffs deposited with the Dell defendants $1,500 as earnest money, which money was to be paid to those defendants as commissions in the event the plaintiffs failed and refused to complete the sales agreement. It was alleged that a copy of the contract was attached to and made a part of the petition. Provisions of the contract pertinent to the issue of the case read: "The purchase price of said property shall be thirty-one thousand & no/100 dollars ($31,000) cash-subject to purchaser procuring a mortgage of 2/3's of purchase price at 5 1/2% interest.
"Purchaser has paid to the undersigned, Bob Dell Realty Company, broker, receipt whereof is hereby acknowledged by such broker, $1,500, as earnest money, which earnest money is to be applied as part payment of purchase price of said property at the time sale is consummated
"This contract constitutes the sale 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."
The petition further related that the exhibit described the plaintiffs as the "buyers" and provided in particular that the consideration of the sale was referred to in the exhibit as follows: "The purchase price of said property shall be thirty-one thousand & no/100 dollars ($31,000) cash-subject to purchaser procuring a mortgage of 2/3's of purchase price at 5 1/2% interest"; that by reason of the foregoing term the agreement is not a legal contract and imposes no rights or liabilities on the plaintiffs and defendants; Robert C. Dell and Robert C. Dell, Jr., have no right to retain the $1,500 earnest money under the terms of the purported agreement or for services leading up to the same; the plaintiffs paid E. J. Swims, president and agent of the defendant Swims, Williams & Bray Construction Company the sum of $600 as further earnest money under the terms of the agreement; by reason of the terms of the contract relative to the consideration of the contract of sale the defendant Swims, Williams & Bray Construction Company retains the $600; that demand has been made on both defendants to return said sums to the plaintiffs and both defendants have failed and refused, and now fail and refuse, to make refund of the moneys to the plaintiffs; the sum of $2,100 should be returned to the plaintiffs by the defendants named "all in equity and good conscience."
The three other counts of the petition were identical with the first, except that each confined a single paragraph not included in the first count. Each of these paragraphs was numbered 11 of the count in which it was included. Paragraph 11 averred the inability of the plaintiffs to obtain a loan in accord with the terms of the purported sales contract from a "lending institution" in which they had confidence, and for this reason the contract was impossible to perform. Paragraph 11 of Count 3 alleged: "That the plaintiffs were and are unable to obtain a loan on said property on terms suitable to themselves, and for this reason said purported contract is impossible of performance."
Paragraph 11 of count 4 reads: "That the lands described in the purported contract, and as first viewed by your plaintiffs and as first outlined and described to your plaintiffs by the defendants are not now the lands which defendants desire your plaintiffs to accept and which defendants offer to deed to your plaintiffs. That there has been no meeting of the minds on the present dimensions of the land which the defendants own and for this reason, the purported contract is impossible of performance."
The prayers of the petition were for process, the recovery of $2,100 with interest thereon from July 18, 1957, at seven percent, and such other and further relief as the plaintiffs were entitled to.
The answer of Robert C. Dell, Jr., set up that Robert C. Dell was deceased, and that he was the sole proprietor of the Bob Dell Realty Company, denied the paragraph of the petition in which it was alleged that the plaintiffs were entitled to recover $2,100 plus interest from July 18, 1957, both admitted and denied that the contract attached as an exhibit to the plaintiffs' petition was executed; alleged that the defendant could neither admit nor deny that Swims, Williams & Bray Construction Company received the $600 alleged in the petition; and explained his acceptance and retention of the $1,500 in the language: "In further answer to counts, one, two, three and four this defendant says that he received the sum of $1,500 as earnest money on the contract of the parties and has acted solely as real-estate broker in this transaction, has no part in the dispute between the purchaser and seller and has had no authority to surrender the earnest money to either purchaser or seller without the authority of both."
The answer of Swims, Williams & Bray Construction Company was in most parts identical with that of Robert C. Dell, Jr. The answer denied that Robert C. Dell, Jr;, received or retained the $1,500 and that the corporation received and possessed the $600 as alleged in the petition; admitted the execution of the sales contract attached as an exhibit to the plaintiffs' petition; and in the same paragraph both admitted and denied that the contract contained the clause "The purchase price of said property shall be $31,000 to be paid as follows: Cash-subject to purchaser procuring a mortgage of 2/3's of the purchase price at 5 1/2% interest". However, the clause does appear in the contract, and is the only stipulation as to the amount of purchase price and the condition upon which it was to be paid.
The defendant Swims, Williams & Bray Construction Company also filed a cross-action in which it was alleged:
"1. After the execution of the contract attached to plaintiffs' petition as Exhibit 'A' the plaintiffs orally promised the defendant's president, Edison J. Swims, that they would purchase said house and lot known as 4940 Rebel Trail for $31,000 if the defend ant would perform certain acts and make certain changes, all as specified by the plaintiffs.
"2. Relying on the plaintiffs' promise to purchase said property the defendant performed certain acts as directed by the plaintiffs, and paid for same, as follows:
"(a) Placed asphalt topping over the concrete turn-around table at the rear of the garage to said house at a cost of $290;
"(b) Built additional brick retaining walls along the driveway at a cost of $2,100;
"(c) Repainted and redecorated the interior of said house at a cost of $400.
"3. In anticipation of purchasing said house and lot as promised to this defendant, the plaintiffs entered upon said property and undertook certain work, as specified hereinafter, on said property, all without the knowledge or consent of this defendant, resulting in the further damages to this defendant, as specified hereinafter:
"(a) Plaintiffs graded the side yard to said property and broke and destroyed an underground drain pipe which will cost this defendant $180 to replace;
"(b) Plaintiffs graded the front and side yards to said property completely covering the bermuda sod previously planted by this defendant which will cost this defendant $560 to resod;
"(c) Plaintiffs graded the side yard in such a manner as to cause surface water to flow against the wall of said house and into the basement of said house which will cost this defendant $390 to correct;
"(d) Plaintiffs dug up and moved shrubbery previously planted by this defendant with the result that all of said shrubbery has been weakened, some is now dying, and some is dead. It will cost this defendant $300 to replace said shrubbery.
"4. By reason of the acts mentioned herein, this defendant has been damaged by the plaintiffs in the amount of $4,120."
The trial judge overruled the general and special demurrers to the petition, sustained the general demurrers to the answers and cross-action and dismissed those pleadings. After the defensive pleadings were stricken, the court, without hearing evidence, entered a verdict in the plaintiffs' favor against both defendants for $2,100 principal, plus $208.25 interest to date of judgment and costs of suit.
To these adverse judgments the defendants excepted and the case is here for review.
1. Headnote 1 requires no elaboration.
2. The merit of the exception to the judgment rendered in the plaintiffs' favor involves the solution of the questions: (a) did the petition as originally drawn set forth a cause upon which the judgment could be legally entered; (b) was the petition subject to the general demurrers filed by the defendant or to special demurrers that effectively attacked any of its averments material to the plaintiff's right to the sums recovered; (c) did the answer of either defendant or the cross-bill of the defendant Swims, Williams & Bray Construction Company set up an issuable defense.
If the allegations of the petition did not show the right of the plaintiffs to recover the full amount for which the judgment was entered against both defendants, the default judgment was erroneously entered. Nix v. Luke, 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, 10 Ga. App. 657
, 73 S. E. 1083; Lightfoot v. King, 25 Ga. App. 80 (2)
, 102 S. E. 468; Scarbrough v. Novak, 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, 1 Ga. 140
; Culbreath v. Culbreath, 7 Ga. 64
(50 Am. Dec. 375).
In discussing payments made to a realty broker under the terms of a contract in every material particular similar to the contract in this case this court held in Carter v. Turbeville, supra, at p. 371, "The payment of earnest money to Lynes Realty Company is not, under the terms of this contract, equivalent in law to payment to the defendant seller. In this connection, see Kenny v. Walden, 28 Ga. App. 810, 811 (113 S. E. 61), and Stiles v. Edwards, 79 Ga. App. 353, 359 (53 S. E. 2d 697)."
The petition failed to show a right of recovery against Robert C. Dell, Jr., for the $600 earnest money alleged to have been paid to Swims, Williams & Bray Construction Company because Dell was not alleged to have received or retained the $600. King v. Forman, 71 Ga. App. 75 (2), supra; Lary v. Hart, 12 Ga. 422.
4. In an action for money had and received brought to recover money paid and received by reason of mutual mistake of law, interest accrues cot from the time the money is received, but from the date on which demand for its return is made. Chief Justice Bleckley in the case of Georgia R. & Bkg. Co. v. Smith, 83 Ga. 626 (5) (10 S. E. 235) held: "The general rule is that on money paid by mistake, where there is no fraud or misconduct by the party receiving it, interest does not run until after demand." See also Code 57-107.
The rule is to the contrary where one obtains and retains possession of another's money mala fides, that is, through fraud, theft or artifice. Riggins v. Brown, 12 Ga. 271 (8); Anderson v. State, 2 Ga. 370; Allen v. Allen, 198 Ga. 269, 280 (31 S. E. 2d 483), and citations.
5. "An action for money had and received lies against one who holds the money of another which he ought in equity and good conscience to refund. Where more than one person is sued, a joint recovery of the whole amount against all will not be authorized, unless it appears that all received the money jointly. If it was not so received, the plaintiff can only recover from each defendant separately the amount shown to have come into his hands." Great Southern Accident &c. Co. v. Guthrie, 13 Ga. App. 288, 290 (79 S. E. 162).
Accepting the averments of the petition as true, the plaintiffs were entitled to a judgment designating the amount for which each defendant was liable, and taxing the costs against both defendants. However, to enter a joint judgment against both defendants for the aggregate amount of money received and retained by each was error.
6. It is apparent from the rulings made that the judgment entered in the plaintiffs' favor must be set aside and a new trial ordered. But we find it necessary to further discuss phases of the case including the contentions of the parties presented by their respective demurrers, the defendants' answers and the defendant Swims, Williams & Bray Construction Company's cross-action. If these contentions are not now disposed of they will upon another trial of the case be again urged in the same or in other forms. A determination of these questions by this court is mandatory under the provisions of Ga. L. 1957, pp. 224, 230 (Code, Ann., 6-701).
7. The defendants correctly contend that the proper order of passing upon demurrers filed, interposed by the opposite parties, plaintiff and defendant, to the petition and defensive pleadings, is to first dispose of the demurrers to the petition and then consider the objections made to the defendant's pleadings. Code (Ann.) 81-1002; Firemen's Ins. Co. v. Oliver, 46 Ga. App. 507, 509 (167 S. E. 909). However, unless the petition was subject to general demurrer, or valid grounds of special demurrer the sustaining of which would have the effect of striking allegations essential to the plaintiffs' night to have the judgment which was entered in their favor, the order in which the demurrers were passed upon was immaterial, and the failure to pass upon the demurrers was harmless. Seaboard Air-Line Ry. Co. v. Jolly, 160 Ga. 315 (127 S. E. 765).
Rulings appearing in the third division of this opinion show the petition not to be subject to general demurrer. But in order to clarify the law applicable to the case, we shall discuss two of the grounds of general demurrer specially insisted upon by the defendants.
8. One of these grounds was based upon the theory that the voluntary payments made under the invalid contract were not recoverable.
In a number of the eases to which we have referred as supporting the proposition that a suit for money had and received lies where one receives and retains money to which another is entitled, there is also authority for the position that money voluntarily paid another through mistake of law may be recovered. Typical of the cases applicable to the question are Reid v. Hemphill, 82 Ga. App. 391
, supra, and Lightfoot v. King, 25 Ga. App. 80 (1)
However, the case of Whitehead v. Peck, 1 Ga. 140, supra, contains an expression of doubt ventured by Justice Lumpkin as to whether usury voluntarily paid could be recovered in an action for money had and received. The case of Parker v. Fulton Loan &c. Assn., 42 Ga. 451 (1) obliterates that doubt in the following language: "That usury voluntarily paid may be recovered back, under the laws of this State; Code, Section 2025, declares the contract as to usury void, and is in affirmance of the principles of the common law, as has been settled by this court, and is sustained by a long series of decisions, sanctioned by the highest and most eminent judicial authority."
9. Another ground of the demurrer urged that the payment of the $600 heretofore referred to could not have been, as the petition alleged, paid as earnest money, because the invalid contract contained the clause: "In the event this contract is not consummated by above date the seller hereby grants the purchasers an extension of time, not to exceed 6 months from above date. In consideration of this extension purchasers hereby agree to pay $100 per month to seller for each month of extension. It is expressly understood by purchasers and sellers that consummation of sale will be executed within the time limit of the above stated extension." It is obvious that the clause referred to was as invalid and unenforceable as the contract in which it was contained. It was of no consequence that the money was denominated earnest money, or otherwise designated; it was paid and received in carrying out the invalid contract, and accordingly was recoverable in an action for money had and received.
The petition showed the contract was signed on July 18, 1957, and the record discloses the suit was filed on June 23, 1958. The payment of the $600 was necessarily made between those dates. In the case of Ellis v. Pullman & Co., 95 Ga. 445 (3) (22 S. E. 568) is the pronouncement: "Averments in the petition to the effect that the alleged misappropriation occurred between the 24th of October, 1892, and the 29th of August, 1893, were sufficiently specific as against a special demurrer alleging that there were 'no allegations of the time of the misappropriation'."
The allegation as to the time of the payment of the $600 was sufficiently definite to enable the plaintiffs to recover that amount, but the failure to allege the precise date of payment or the exact time of demand for its repayment, precluded the plaintiffs' right to recover interest except from the time when the suit was filed.
11. A special demurrer attacked the petition on the ground that the time of the demand alleged to have been made upon the defendants was not set forth. There is no merit in the ground. It is not necessary to a well-pleaded action for money had and received that a demand for the return of the money be alleged. Bank of Oglethorpe v. Brooks, 33 Ga. App. 84 (6) (125 S. E. 600); Jasper School District v. Gormley, 57 Ga. App. 537, 544 (196 S. E. 232); Bass v. Cates, 74 Ga. App. 363, 369 (39 S. E. 2d 550). The general rule in other cases of assumpsit is the same. Farmers & Merchants Bank v. Bennett & Co., 120 Ga. 1012, 1015 (48 S. E. 398).
12. The defendants demurred generally to the petition's prayer for interest on the ground that the plaintiffs were not as a matter of law entitled to recover interest on the principal amounts for which recovery was prayed. This ground of demurrer is without merit for the reasons stated in division 4 of this opinion.
13. The defendant specially demurred to the prayer of the petition for the recovery of interest on the ground that the prayer was contrary to other allegations of the petition. The ground did not designate the allegation of the petition referred to as being in conflict with the prayer, and hence was too indefinite to be considered. The remaining grounds of the special demurrers to the petition are either themselves technically too imperfect to be considered or are without merit.
14. Whether the answer of either defendant should have been stricken depends upon whether it presented an issuable defense to the cause alleged in the petition. Consideration need not be given to the question as to whether the denial in each of the answers to paragraph 11 in each answer constituted the denial of a fact alleged in the petition for the reason that averments of those paragraphs were not essential to the plaintiffs' right of recovery. Each count of the petition set out a complete cause for money had and received against each of the defendants. Each of the defendants' answers denied that the defendants received and retained the $1,500 as alleged in the petition. However, both answers admitted the execution of the contract, a copy of which was attached as an exhibit to the petition. The attached exhibit showed the money was received by the defendant Bob Dell Realty Company.
"The general rule is that allegations in a petition must yield to contradictory facts shown in exhibits attached thereto. Equitable Credit &c. Co. v. Murray, 79 Ga. App. 795 (2)
(54 S. E. 2d 650); Atlanta Journal Co. v. Doyal, 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.