Opinion
43559, 43560.
ARGUED APRIL 1, 1968.
DECIDED JUNE 18, 1968. REHEARING DENIED JULY 9, 1968.
Action on contract. Richmond Superior Court. Before Judge Killebrew.
Cumming, Nixon, Eve, Waller Capers, Wm. Byrd Warlick, for appellant.
Sanders, Hester, Holley, Ashmore Boozer, Thomas R. Burnside, Jr., Richard A. Slaby, for appellees.
The law governing the sufficiency of the petitions in these cases was fixed on the first appeal in time. The amendments filed cured the defects ruled to exist and the court erroneously sustained the general and special demurrers to the amendments and to the petitions as amended.
ARGUED APRIL 1, 1968 — DECIDED JUNE 18, 1968 — REHEARING DENIED JULY 9, 1968 — CERT. APPLIED FOR.
On the prior appeals of these cases from the judgments overruling the general demurrers to the petitions, this court reversed the trial court, holding that the petitions were deficient since they did not allege the existence of either of the only two contingencies which would entitle the plaintiff to recover advanced commissions from the defendants under the alleged written contracts. North Ga. Ins. Agency v. First of Ga. Ins. Co., 113 Ga. App. 75 ( 147 S.E.2d 342); Richmond Ins. Agency v. First of Ga. Ins. Co., 113 Ga. App. 76 ( 147 S.E.2d 334). Prior to the entry of judgments on the remittiturs in these cases the plaintiff filed amendments to the petitions, the substance of each of which is as follows: that plaintiff and defendant, at the time of the execution of the amendment to the principal contract, both of which are set forth as bases for the claim by the plaintiff that the unearned commissions should be returned to the plaintiff by the defendants, acknowledged and agreed that the provision in the amendment to the contract between the parties providing for the defendants to retain 15% of the premiums due plaintiff constituted a loan on the part of the plaintiff to the defendants which would be repaid by the defendants to the plaintiff if not earned by defendant; and that in accordance with this agreement and understanding the defendants returned to the plaintiff certain sums representing advanced commissions which defendants had retained but not earned as of the date of the return of such advanced commissions and that subsequently the sums were re-loaned by the plaintiff to the defendants to be retained by the defendants only if earned in accordance with the provisions of the original agency agreement, otherwise to be repaid to the plaintiff. The defendants renewed original demurrers and filed numerous additional demurrers to the amendment and to the petition as amended. These renewed and additional demurrers were sustained and the actions dismissed, from which judgments the plaintiffs appeal.
This court, on the first appeal in this cases, ruled that under the terms of the contract commissions advanced to the defendants were not repayable to the plaintiff by the defendants under the express terms of the contract for the reason that the contract stated the two conditions under which the advances were repayable and the petition did not allege the existence of either condition (either one or both would require repayment) prerequisite to the duty of the defendants to return all or part of the advanced commission. This ruling necessarily means that the ruling obtains whether the advanced commissions were earned or unearned, because no distinction between them is made in the opinions. Thus the rulings on the first appeal are the law of the two cases. The only question then for this court on these appeals is whether the amendment in each case is sufficient to obviate the law of the cases.
We think that the last amendments take the case without the rulings on the first appearance of these cases in this court. The actions originally were for money had and received. The amendments set forth another reason why the actions should proceed on such theory. Construing the content of the amendments in favor of the appellants ( Hill v. Willis, 224 Ga. 263 ( 161 S.E.2d 281)), the amendments to the original contract as amended are presumed to be in writing, the original contract being required to be in writing under the Statute of Frauds because contemplating performance beyond a year. But even if the last amendments to the original contracts as amended are not in writing the amendment shows such performance by appellants as to take the transactions out of the Statute of Frauds.
The court erred in sustaining the demurrers to the petitions in these cases and in dismissing the actions.
Judgments reversed. Eberhardt and Whitman, JJ., concur.