Opinion
43271.
SUBMITTED JANUARY 3, 1968.
DECIDED FEBRUARY 2, 1968.
Action on contract. Fulton Civil Court. Before Judge Wright.
Claude E. Hambrick, for appellant.
Nall, Miller, Cadenhead Dennis, Price Williams, for appellee.
The court properly sustained the general demurrer to the petition.
SUBMITTED JANUARY 3, 1968 — DECIDED FEBRUARY 2, 1968.
Ammie M. Cullens brought an action against Jerry W. Phillips, seeking to recover a sum of money allegedly deposited with the defendant in accordance with the following written agreement, attached as an exhibit to the petition:
"Contract and agreement. This agreement made and entered into this 7th day of March, 1966, by and between Mr. Jerry W. Phillips party of the first part, and Mrs. Ammie M. Cullens, party of the second part.
"Witnesseth: Whereas party of the first part has contractual [sic] agreement with certain firms and sources engaged in the buying, selling, trading of precious gems and stones, and;
"Whereas party of the second part is desirous of depositing $8,500.00 in said operation at a stipulated and agreed profit, it is hereby mutually agreed on the following:
"1. Party of the second part will receive a sum equal to 15% percent of the net profit on each transaction, and each time the aforesaid invested sum is utilized in the purchase of said precious gems and stones, and party of the second part will receive a sum equal to 15% percent of said net profit.
"2. It is agreed that party of the second part shall have the right to terminate this agreement upon written notice given to party of the first part by registered mail.
"3. This agreement is between the parties of this agreement and in no way conflicts with any agreement that the party or parties have under agreements with parties of other agreements. . ."
It is alleged that, on January 30, 1967, plaintiff demanded in writing the return of her $8,500, a copy of which demand was attached as an exhibit to the petition, and that the defendant has failed and refused to return the money which he has "on deposit for plaintiff."
The defendant filed general and special demurrers to the petition. The court sustained the general demurrer, from which judgment the plaintiff appeals.
Even if the allegations of the petition can be construed to allege the actual payment of the money by the plaintiff to the defendant, the petition fails to set out a cause of action against the defendant for the return of such money. Although the petition refers to the transaction as a "deposit," it appears to have been rather a speculative investment. In fact, the petition refers to the money as "the aforesaid invested sum." (Emphasis supplied.) Although the agreement provides for a sharing of any profits, it neither guarantees any profits nor makes any provision with regard to losses. Furthermore, although the plaintiff was given the right to terminate the agreement, which right she exercised, there was no provision, either express or necessarily implied, for a refund in that event. Cases dealing with deposits, such as Cooper v. Nat. Bank of Savannah, 21 Ga. App. 356 ( 94 S.E. 611) and Elbert Sales Co. v. Granite City Bank, 55 Ga. App. 835 ( 192 S.E. 66), therefore, have no application in the present case, in which the plaintiff risked her money on a speculative investment and apparently lost. The petition does not allege that the money placed with the defendant was not invested. Construing the allegation that the defendant has the money "on deposit for plaintiff" most strongly against the pleader, the term "deposit" must be given its legal meaning, i.e., creating an unconditional debt, as hereinabove stated.
The court, therefore, did not err in its judgment sustaining the general demurrer to the petition.
Judgment affirmed. Eberhardt and Whitman, JJ., concur.