Opinion
35837.
DECIDED NOVEMBER 23, 1955.
Money had and received. Before Judge Heery. Savannah City Court. June 23, 1955.
Harry P. Anestos, for plaintiff in error.
Ralph L. Crawford, contra.
Since the plaintiff, through no fault of his own, failed to secure an F. H. A. loan on the property as provided by the sales contract, he is entitled to the return of the money he paid to the seller as part of the down payment on the property; therefore, the court erred in sustaining the general demurrer to the petition and in dismissing the action.
DECIDED NOVEMBER 23, 1955.
Jimmie Chappas sued Roy A. Sandefur for money had and received. The amended petition alleged in substance: that the defendant is indebted to the plaintiff in the sum of $1,200 for money had and received, the same being evidenced by a check in the amount of $1,000 and cash in the amount of $200 delivered to the defendant as part of a down payment on the conditional purchase from the defendant of a house and lot, upon which it was agreed that the conditional purchase was contingent on the purchaser's ability to secure a loan of $14,000; that despite repeated attempts in good faith to secure the loan described, the plaintiff was unable to secure such a loan; that the defendant fails and refuses to render to the plaintiff the conditional payment of $1,200 although demand has been made repeatedly on him to do so; that the conditional purchase agreement is attached to the petition and made a part thereof. The sale and purchase agreement provided: that the defendant agreed to sell and the plaintiff agreed to buy, through T. J. McGinley Realty Company, as agent, certain described property in Chatham County, Georgia; that "the purchase price of said property shall be eighteen thousand, nine hundred and 00/100 dollars ($18,900) to be paid as follows: $4,900 cash and subject to securing F. H. A. loan of $14,000." The contract further provided that the purchaser had paid to the seller's agent $900, as earnest money, to be applied as part payment on the purchase price of the property; that if the sale was not consummated due to the purchaser's default, the earnest money should be used to pay seller's agent's commission, and that if the sale was not consummated for reasons other than the purchaser's default, the earnest money should be refunded to the purchaser. After the petition was amended, the defendant renewed his general and special demurrers. The court did not rule on the special demurrer but sustained the general demurrer and dismissed the action, to which judgment the plaintiff now excepts.
The petition alleged a good cause of action for money had and received as against a general demurrer. The plaintiff paid $1,200 to the defendant as part of the down payment. The ultimate sale of the property was contingent upon the securing of an F. H. A. loan. The plaintiff, through no fault of his own, was unable to secure such a loan; therefore, the sale did not go through. Since the purpose for which the plaintiff parted with his money has failed, he is entitled to the return of the $1,200 he paid to the defendant as part down payment. Hayslip v. Long, 86 Ga. App. 482, 492 (4) ( 71 S.E.2d 852).
The case of Carter v. Turbeville, 90 Ga. App. 367 ( 83 S.E.2d 72) has no application here because this is not an action against the seller for earnest money paid to the seller's agent but is an action against the seller for money paid to him as a part of the down payment on the property.
The court erred in sustaining the general demurrer and in dismissing the action.
Judgment reversed. Quillian and Nichols, JJ., concur.