Opinion
35530.
DECIDED APRIL 11, 1955.
Money had and received. Before Judge Bagley. Columbus Municipal Court. November 22, 1954.
Foley, Chappell, Kelly Champion, Kenneth M. Henson, for plaintiff in error.
J. Walter Owens, contra.
1. Where the vendor of an automobile fails to make delivery in accord with the sales agreement, the vendee may elect to rescind the agreement and bring suit for a part of the purchase price previously paid by him.
2. The allegations of the petition are not subject to the criticism that they are too uncertain or indefinite to meet the requirements of good pleading.
3. Where a sales contract contemplates that the payment of the purchase price of the thing sold is to be made upon delivery, the vendor can not require that such payment be made several days in advance of delivery.
4. The evidence supported the verdict, and the trial appears to be free from error.
DECIDED APRIL 11, 1955.
Queen E. Roberts filed in the Municipal Court of Columbus a suit for money had and received against John A. Pope Motor Company, Inc.
The petition as amended alleged that on June 11, 1953, the plaintiff, who was then the owner of a 1949 Dodge Coronet club coupe automobile of the value of $750, entered into an agreement with the defendant, Jno. A. Pope Motor Company, Inc., by the terms of which the defendant would sell to the plaintiff a new Dodge passenger automobile and receive from her as part payment her above-mentioned used car, and in accordance with the terms of the agreement issued to the plaintiff a "credit memorandum" in the sum of $306. It appears from the petition that the reason the memorandum was for $306 instead of $750 was that the plaintiff did not have a clear title to her used automobile but had only an equity in it of $306. The credit memorandum reads:
"Jno. A. Pope Motor Company 219 Thirteenth Street Columbus, Georgia "1603 June 11, 1953 1603 "Credit Memorandum. "Queen E. Roberts 2500 Buena Vista Road Columbus, Ga. "1603 "1 — 1949 (1st Series) Dodge Coronet Club Coupe Serial No. 31221523, Motor No. D24-620375 $750.00 Less amount due Victory Finance Co. 443.18 -------- Net credit 306.82 The above credit is to apply on the purchase of one new Dodge passenger car, price to be at the prevailing price at the time of delivery. It is understood and agreed by all parties that there will be no additional trade-in nor credit to apply to this transaction. "Jno. A. Pope Motor Co. By /s/ John A. Pope, Jr. "Accepted /s/ Queen E. Roberts." The petition further shows that on August 28, 1953, the plaintiff requested the defendant to deliver to her a new Dodge automobile, and that the defendant failed and refused to deliver it; that the plaintiff thereupon demanded of the defendant the $306 she had paid on the purchase price of the new automobile in the manner related in the petition.The defendant filed a demurrer to the petition on general and special grounds. The plaintiff amended the petition, supplying material facts to meet the demurrer. After the amendment was allowed, the trial judge overruled the demurrer.
The defendant filed an answer denying all the material allegations of the petition.
The defendant offered an amendment to its answer, alleging that it issued the credit memorandum to the plaintiff as alleged in her petition; that the defendant had received a letter from the plaintiff about August 18, 1953, requesting that it deliver to her a 1953 six-cylinder Coronet club coupe standard gear Dodge automobile; that in the letter the defendant indicated that she wanted to finance the automobile; that the defendant was unable to finance the automobile for the plaintiff because, on inquiry of a credit corporation, it found her credit was bad; that the plaintiff was informed by the defendant that it would deliver to her an automobile a few days after she arranged to pay for it; that she then refused to go forward with the contract and demanded the return of the amount she had paid on the purchase price; and that the plaintiff thus breached the sale contract and had thereby damaged defendant in a stated amount. The court disallowed the amendment.
The issues made by the pleadings and developed by the evidence introduced upon the trial of the case were: whether the plaintiff had demanded of the defendant the delivery of a new automobile in accord with the provisions of the contract; whether the defendants complied with or failed to comply with that demand; and whether the plaintiff thereafter elected to rescind the contract and made demand upon the plaintiff for the value of the automobile she had traded in on the purchase price of the new Dodge automobile.
The evidence on every contested phase of the case was in sharp conflict. The jury returned a verdict for the plaintiff. The defendant excepted to the overruling of its general and special demurrers, to the disallowing of the amendment to its answer, and to the denial of its motion for a judgment notwithstanding the verdict and its amended motion for a new trial.
1. For convenience of expression, we refer in this opinion to the defendant in error as the plaintiff and to the plaintiff in error as the defendant, that being the respective positions of the parties in the trial court.
The defendant contends that the petition set forth no cause of action, because the plaintiff brought a suit for money had and received, where an express contract existed, and the plaintiff's only remedy would be a suit for breach of contract.
An action for money had and received lies where the defendant receives money or its equivalent which in equity and good conscience he has no right to retain. Carmichael Tile Co. v. C. A. D. Bayley Co., 42 Ga. App. 408 ( 156 S.E. 319).
Where the vendor of personalty, after receiving a part of the purchase price of the thing sold from the vendee, refuses to make delivery in accord with the terms of the agreement, the vendee may elect to rescind the contract and bring an action for money had and received to recover the part of the purchase price he has paid. Duke v. Cason, 25 Ga. App. 344 ( 103 S.E. 176); Raymond Rowe Furniture Co. v. Simms, 84 Ga. App. 184 ( 65 S.E.2d 830).
Two of the ways in which the vendee may assert his election to sue for money had and received, instead of suing for a breach of the contract, are: first, by demanding the return of the amount paid the vendor; the other is by suing for money had and received. In this case the vendee did both. The petition set forth a cause of action.
2. We have carefully examined the grounds of special demurrer, well pleaded and skilfully argued by counsel for the defendant, but in our opinion the petition as amended is not subject to the criticisms made by the special demurrer. For instance, one of the grounds of the special demurrer is that the petition does not allege what constituted a reasonable time. Indeed, it did not, but it alleged the period of time that expired between demand for and failure to deliver the automobile purchased by plaintiff from the defendants. The facts alleged were sufficient to authorize the trial court to submit the issue to the jury as to whether it was a reasonable time for the delivery of the automobile.
Another ground of the demurrer attacked a rather irrelevant allegation of the petition that the plaintiff was forced to buy an automobile elsewhere. The allegation was stricken by amendment, and a somewhat similar averment substituted in its stead without any objection being interposed by the defendant.
The amendment was properly disallowed. It sought to set up that the defendant had indicated a desire to finance a balance that she would owe on the purchase price of the automobile she was purchasing under the agreement alleged in the petition. In the first place, the allegation is a mere conclusion of the pleader, the language of the letter not being set out literally or in substance in the amendment. Under the terms of the original sales agreement as it appears from the pleadings and evidence, no provision was made for credit to be extended to the plaintiff. Consequently the sale was as a matter of law a cash sale.
It is not alleged in the amendment that the plaintiff refused to pay cash for the automobile, as she was bound to do under the terms of the original contract, but is alleged simply that she indicated a desire for credit. The allegation that her credit was reported to be bad was entirely irrelevant, since her ability to obtain credit was not involved in the case.
The amendment states that the defendant advised the plaintiff that it would have the new automobile ordered by her within a few days after she arranged to pay cash for the same. The sale was a cash sale; the defendant had no right to defer delivery for a few days or for any length of time after the plaintiff arranged to pay cash; its obligation was to deliver the automobile upon cash being paid for it, not in a few days thereafter. No breach of the contract by the plaintiff is alleged in the amendment.
There was sufficient evidence to support the allegations of the petition and authorize the verdict for the plaintiff.
Judgment affirmed. Nichols, J., concurs. Felton, C. J., concurs in the judgment.