Opinion
34403, 34404, 34405.
DECIDED FEBRUARY 28, 1953.
Money had and received; from Fulton Civil Court — Judge Etheridge. October 24, 1952.
John L. Respess Jr., for plaintiffs in error.
Newton Craig, contra.
Under the allegations of the plaintiffs' petition and the law applicable thereto, the petition set forth a cause of action against the defendants for money had and received, and the court did not err in overruling the defendants' general demurrers.
DECIDED FEBRUARY 28, 1953.
Charles E. Boynton, Estelle P. Boynton, Ethel H. Boynton, Martha Boynton Craig, and Myra Boynton Brown filed their petition in the Civil Court of Fulton County against S. A. Kellett, Jack A. Patton, and S. A. Kellett and Jack A. Patton doing business as Kellett Patton, and alleged, omitting formal parts:
"5. At all times mentioned herein defendants S. A. Kellett and Jack A. Patton were doing business under the firm name of Kellett Patton.
"6. At all times mentioned herein the plaintiffs were tenants in common of real property and were doing business in the name of Boynton Cole.
"7. At all times mentioned herein Newton Craig was attorney at law and agent for the plaintiffs and as such was authorized to represent and bind them in all matters connected with real property owned by them in Fulton County, Georgia.
"8. Plaintiffs show that prior to March 1, 1951, their attorney and agent, Newton Craig, had on several occasions discussed with defendant, Jack A. Patton, a certain tract of land owned by plaintiffs, containing two (2) acres, more or less, and located between Milton Avenue and Martin Street in the City of Atlanta, Georgia, and told the said Jack A. Patton that plaintiffs would be willing to sell said tract of land for a price in the neighborhood of two thousand ($2,000.00) dollars, and requested Jack A. Patton to find a purchaser for said property if he could.
"9. Plaintiffs show that Jack A. Patton agreed to act as plaintiffs' agent for the sale of the aforesaid tract of land.
"10. During the morning of March 27, 1951, Jack A. Patton came to the office of Newton Craig and advised that he had found a purchaser for said tract of land who would pay sixteen hundred ($1,600.00) dollars cash therefor.
"11. The said Newton Craig told the said Jack A. Patton that plaintiffs wished to obtain a larger price for said tract of land.
"12. Defendant, Jack A. Patton, told Newton Craig that his prospective purchaser would pay no more than sixteen hundred ($1,600.00) dollars for said tract of land and requested that the said Newton Craig advise plaintiffs of said offer.
"13. Newton Craig so advised plaintiffs of the aforesaid offer and was instructed by plaintiffs to accept said offer and to sign a sales contract for said tract of land with the prospective purchaser produced by Jack A. Patton.
"14. Shortly after one p. m. on March 27, 1951, Jack A. Patton told Newton Craig that his prospective purchaser was a real-estate speculator named S. A. Kellett, and the said Newton Craig signed a sales contract as agent and attorney for plaintiffs for the sale of the aforesaid tract of land to S. A. Kellett.
"15. At the time of the signing of the aforesaid sales contract neither plaintiff[s] nor Newton Craig, their attorney and agent, had any knowledge of the fact that S. A. Kellett and Jack A. Patton were doing business together as real-estate agents and brokers and were in fact partners in the real-estate business.
"16. On March 27th or March 28th, 1951, defendant, S. A. Kellett, signed a sales contract as seller with one R. M. Crane, as purchaser, for the aforesaid tract of land for a sales price of three thousand ($3,000.00) dollars.
"17. Plaintiffs show that both of the aforesaid sales contracts were dated March 27, 1951, and that both of them named Jack A. Patton as agent.
"18. Plaintiffs show that in accordance with their sales contract with S. A. Kellett, they conveyed the aforesaid tract of land to said S. A. Kellett on April 24th, 1951, and received as a consideration for said conveyance the sum of sixteen hundred ($1,600.00) dollars.
"19. Plaintiffs show that defendant, S. A. Kellett, conveyed the aforesaid tract to R. M. Crane on the 1st day of June, 1951, in consideration of the sum of three thousand ($3,000.00) dollars.
"20. Defendants, S. A. Kellett, Jack A. Patton, and S. A. Kellett and Jack A. Patton doing business as Kellett Patton, are indebted to plaintiffs in the sum of fourteen hundred ($1,400.00) dollars, said sum being the difference between the consideration paid by R. M. Crane to S. A. Kellett for the aforesaid tract, that said sum was had and received by the aforesaid defendants for the plaintiffs and that demand has been made upon said defendants for said sum."
The defendants filed separate general demurrers to the petition on the ground that no cause of action was set out against demurrants, the demurrers were overruled, and the defendants filed separate bills of exceptions to said judgments and brought the three cases to this court.
This is an action in assumpsit for money had and received, which is an action at law and is maintainable in cases where the defendant has received money under such circumstances that in equity and good conscience he ought not to retain it, and which in equity and good conscience the plaintiff is entitled to recover. The question for determination is whether the petition was good as against general demurrer. The petition shows that the plaintiffs owned a described tract of land in Atlanta, Georgia, and that their representative, Newton Craig, conferred with Jack A. Patton, a real-estate agent, with reference to his selling said property for the plaintiffs for an amount in the neighborhood of $2000; that Patton agreed to act as agent for the plaintiffs for the sale of the property, and, shortly thereafter, on March 27, 1951, told the plaintiffs or their representative. Newton Craig, that he had found a purchaser for the property who would pay $1600 cash for the property but would not pay any more for it; and that the plaintiffs, through said Newton Craig, then accepted said offer and Patton then told Craig that the prospective purchaser was S. A. Kellett, a real-estate speculator, and Craig, for the plaintiffs, signed a sales contract for the sale of the land to S. A. Kellett. At the time of signing said sales contract, neither the plaintiffs nor Newton Craig, their representative, had any knowledge of the fact that S. A. Kellett and Jack Patton were doing business together as real-estate agents and brokers and were in fact partners in the real-estate business. On the same date, March 27, 1951, S. A. Kellett signed a sales contract, for the said property to R. M. Crane for $3000, and Jack A. Patton was named as the agent in both of said sales contracts. At all times mentioned in the petition, the defendants, S. A. Kellett and Jack A. Patton, were doing business as partners under the firm name of Kellett Patton.
It is alleged that the defendants are indebted to the plaintiffs in the sum of $1400, said sum being the difference between the amount of $1600 paid to them by S. A. Kellett and the amount of $3000 paid by Crane to Kellett for the property, and that the sum sued for was had and received by the defendants for the plaintiffs, and demand therefor had been made upon the defendants.
Code § 4-204 is as follows: "Without the express consent of the principal after a full knowledge of all the facts, an agent employed to sell may not himself be the purchaser; and an agent to buy may not himself be the seller." As said in Dolvin Realty Co. v. Holley, 203 Ga. 618, 621 ( 48 S.E.2d 109), "The law is uniform and well settled that an agent, who has been engaged to sell real estate for the owner, may not, either directly or indirectly, purchase it himself, without the express consent of the principal after a full knowledge of all the facts." See and compare Hodgson v. Raphael, 105 Ga. 480 ( 30 S.E. 416); Mitchell v. J. A. Gifford Co., 133 Ga. 823 ( 67 S.E. 197); Peterson v. Appleby, 31 Ga. App. 286 ( 120 S.E. 651).
Patton and Kellett were doing business together as real-estate agents and brokers, and were in fact partners in the real-estate business. Patton was acting as agent for the plaintiffs in the sale of the property, and neither he nor his partner could become the purchaser of said property without the express consent of the plaintiffs after full knowledge of all the facts. The relationship of principal and agent is confidential and fiduciary, and demands of the agent loyalty and good faith to the principal ( Williams v. Moore-Gaunt Co., 3 Ga. App. 756, 60 S.E. 372; Peevy v. Wilkes, 48 Ga. App. 114, 172 S.E. 108); and Code § 4-205 provides that "The agent shall not make a personal profit from his principal's property; for all such he is bound to account."
Under the allegations of the petition and the law applicable thereto, we are of the opinion, and so hold, that the petition set forth a cause of action, and the court did not err in over-ruling the defendants' general demurrers.
Judgment affirmed. Gardner, P. J., and Townsend, Worrill, and Carlisle, JJ., concur. Felton, J., dissents.
The general demurrer should have been sustained. As against a demurrer the pleadings must be construed against the pleader and no inference can be drawn favorable to the pleader unless the facts alleged demand the inference. The allegation that at the time neither the plaintiffs nor their attorney had knowledge of the fact that S. A. Kellett and Jack A. Patton were doing business together as real-estate agents and brokers and were in fact partners in the real-estate business is not an allegation that they were in such business together at a particular time. The allegation is consistent with the fact that they were not in such a business at the time alleged. It was not elsewhere alleged that the partnership of Kellett and Patton was engaged in the real-estate business. Furthermore, it was not alleged that Jack A. Patton acted as a member of the partnership or as agent of Kellett in selling the property or that Kellett acted as a member of the partnership in buying it or as agent for Patton. There is no allegation of conspiracy or collusion between Patton and Kellett and no allegation that Patton knew that he could obtain more for the property than was offered by Kellett at the time the contract to sell was signed by Kellett. In order to hold the petition in this case good as against general demurrer, we would have to add by inference the facts above stated, or some of them, which under the rules of law we have no power or authority to do. See Davis v. Arthur, 139 Ga. 74 (4) ( 76 S.E. 676); Central of Georgia Ry. Co. v. Tapley, 145 Ga. 792 ( 89 S.E. 841); Code (Ann.) § 81-101 and Pocket Part, catchwords "Ambiguous pleadings."