Chappas v. Sandefur

Felton, C. J. 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.