Opinion
34529.
DECIDED MARCH 14, 1953.
Attachment; from Columbus Municipal Court — Judge Bagley. December 2, 1952.
John H. Land, for plaintiff in error.
J. Alvan Davis, W. L. Slaughter, contra.
It is error for the trial court to direct a verdict where there is some evidence which, together with all reasonable deductions and inferences therefrom, would support a verdict in favor of the party against whom the verdict is directed.
DECIDED MARCH 14, 1953.
R. D. Roberson filed an attachment against W. C. Curry in the Municipal Court of Columbus for the principal sum of $300. The declaration in attachment alleged that on or about May 17, 1952, the plaintiff paid the defendant $300 as earnest money under an agreement whereby the defendant agreed to assign to the plaintiff a rental lease together with improvements located on the premises, to obtain a five-year renewal option from the landlord, and to sell the plaintiff certain items of personal property; and that the defendant did not consummate this transaction and refused to refund the earnest money although demand therefor had been made. It appeared from the evidence on the trial that the subject matter of the agreement was the sale of property constituting a miniature golf course, and the lease of the land on which it was located. On at least two issues of fact the evidence was irreconcilable: the plaintiff contended that the five-year lease renewal obtained for him by the defendant from the owner of the land contained a provision that the leased realty could not be used for any other purpose than a miniature golf course without written consent of the lessor, while the defendant, and a witness in his behalf, while conceding this provision in the new lease, testified that the same provision had been included in the original lease, which testimony was denied by the plaintiff. Further, the plaintiff testified that the agreement entered into on May 17, 1952, was between himself and the defendant, and that the earnest money, which was delivered to the defendant by mail in the form of a check for $300, signed "Joe Jones," by the father-in-law of the plaintiff, represented money loaned to him by his father-in-law, the contract being his individual undertaking. The defendant denied this, but testified that a previous offer by him to sell the property and the lease for $4000 to the plaintiff had been refused, and that the agreement of May 17, to sell the property for $3000, was between himself and Joe Jones individually, with the plaintiff acting merely as agent for Jones.
At the close of the evidence a verdict was directed for the plaintiff, and this ruling is assigned as error.
"In order for the directing of a verdict to be error, it must appear that there was some evidence, together with all reasonable deductions and inferences from it, to support a verdict for the party against whom it was directed, and in determining this question the evidence must be construed in its light most favorable to the party against whom it was directed." Whitaker v. Paden, 78 Ga. App. 145 (1) ( 50 S.E.2d 774); Edwards v. Gulf Oil Corp., 71 Ga. App. 649 ( 31 S.E.2d 677); Everett v. Miller, 183 Ga. 343 ( 188 S.E. 342); Code, § 110-104.
As a general rule, the action on a contract shall be brought in the name of the party in whom the legal interest in such contract is vested. Code, § 3-108. Where the plaintiff is the agent of a known principal, and his agency is not coupled with an interest known to the opposite party in such manner as to form an exception to the general rule, the agent may not, in his own name, bring an action for the recovery of his principal's money. Whitfield v. Boykin, 48 Ga. App. 141 ( 172 S.E. 82). See also Cambridge v. Bache, 25 Ga. App. 815 ( 104 S.E. 914). The alleged principal here, Jones, was not a party to this action, and would not be bound by any judgment in favor of the plaintiff, but any right of action he might have against the defendant would continue to exist if the sum in question was erroneously paid over by the defendant to the plaintiff as agent. Accordingly, there was a question for jury determination as to whether or not the plaintiff was proceeding in his own right, as he contends, or as agent of another, as contended by the defendant; and, if the latter, he has no right to maintain this action.
Further, whether or not the defendant should be compelled to refund the earnest money is dependent upon whether or not he breached the contract of purchase. The plaintiff testified that he refused to purchase the property because the lease offered to him differed in a material particular from the previous lease, contrary to the agreement of the parties. This was controverted by evidence for the defendant and was, accordingly, another issue of fact which only the jury could determine. Accordingly, the trial court erred in directing a verdict in favor of the plaintiff, as such verdict was not demanded by the evidence.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.