Terrell v. Harris

Bell, J. (After stating the foregoing facts.) While the bill of exceptions assigns error on the exceptions pendente lite to the overruling of the demurrers to the petition, the attorney for the plaintiffs in error has referred to this assignment only by way of recital, and, in the absence of argument or insistence upoh the demurrers, the exception to the ruling thereon will be treated as abandoned. We think the court erred in -directing the verdict. Whether the petition be construed as a suit on a special contract or as an action for money had and received, the gravamen of the complaint is that the defendants received the sum of $200, which they promised to return to the plaintiff unless they found a house suitable to her. There was a conflict in the testimony as to whether the defendants found a house suitable to the plaintiff, and the evidence therefore presented an issue for the jury as to whether the plaintiff was entitled to recover. Cf. Sylvania & Girard R. Co. v. Sylvania Lumber Co., 8 Ga. App. 656 (70 S. E. 51); Kenney v. Walden, 28 Ga. App. 810 (113 S. E. 61); Wright v. Brown, 29 Ga. App. 687 (4) (116 S. E. 341). The petition, in alleging, without more, that the money was paid over under an agreement that if the defendant did not find a house suitable the money would be returned, necessarily implied that if the defendants did find such a house the money would not be returned. This, we think, is the fair and proper interpretation of the petition, and, in this view, the plaintiff will not be heard to say that the defendants could not keep the money if they complied with such condition, the allegations of the petition, so long as they stand, being conclusive evidence in favor of the defendants upon this question. Civil Code (1910), § 5775; Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138 (33 S. E. 945); East Tenn. &c. Ry. Co. v. Kane, 92 Ga. 187 (5) (18 S. E. 18, 22 L. R. A. 315); Neiu Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (6) (116 S. E. 922). [764] The plaintiff contended that notwithstanding the conflict in the testimony as to whether the defendants found a house suitable to her, the evidence showed, without dispute, that the parties entered into what amounted to a mere oral contract for the purchase of lands, voidable under the statute of frauds, and that for this reason the plaintiff was entitled to recover the amount paid on the purchase-price. Assuming that the evidence established such a contract, and also that money paid in such case may be recovered at the mere election of the vendee (but see, in this connection, Dodgen v. Camp, 47 Ga. 328; Higgins v. Kenney, 159 Ga. 736, 126 S. E. 718; Jay v. Sweatt, 8 Ga. App. 481, 70 S. E. 16; Clemons v. Estes, 24 Ga. App. 480, 101 S. E. 312; Cook v. Griffith, 76 W. Va. 799, 86 S. E. 879, L. R. A. 1916D, 466); Keystone Hardware Corp. v. Tague, 246 N. Y. 79, 158 N. E. 27, 53 A. L. R. 610; Chandler v. Wilder, 215 Ala. 209, 110 So. 306; 27 C. J. 358, 361; 25 R. C. L. 725, 726), we think the right to recover upon this theory is incompatible with the suit as framed, although perhaps not amounting in fact to a different cause of action (City of Columbus v. Anglin, 120 Ga. 785 (4, 5), 48 S. E. 318; Harris v. Central Railroad, 78 Ga. 525, 531, 3 S. E. 355); and even though the petition might have been amended so as to permit a recovery upon such theory. Kraft v. Rowland, 33 Ga. App. 806 (2) (128 S. E. 812); Southern Ry. Co. v. Campbell Coal Co., 41 Ga. App. 83 (151 S.E. 661). The necessary inference from the petition being that the defendants would have the right to keep the money if they found a house suitable to the plaintiff, the petition, unless and until amended, stands as an absolute barrier against the plaintiff’s right to recover merely upon proof that the money was paid upon an agreement which was unenforceable under the statute of frauds. This is true for the reason that the house found by the defendants might still have been suitable to the plaintiff, and if so, the plaintiff could not reclaim the money simply because the contract may have been voidable in view of such statute. The rule as laid down in Napier v. Strong, 19 Ga. App. 401 (91 S. E. 579), to the effect that “evidence, admitted without objection, which supports what is in fact the same cause of action, although it might have been excluded on objection, may be sufficient to authorize a recovery, if, under the facts of the case, the petition could [765] by amendment have been so conformed to the proof as to render such testimony relevant,” must be construed harmoniously with the other principle that a plaintiff is bound by the allegations of his petition, and can not recover upon a theory which is absolutely inconsistent therewith and which is thus disproved by the averments of the petition, considered as evidence in behalf of the opposite party. The rule to which we have just referred seems to be subject also to at least one other exception, which is that a plaintiff can not sue on an express contract and recover upon proof of a mere implied obligation, notwithstanding the petition might have been amended by the addition of a count based upon an implied contract. Jackson v. Buice, 132 Ga. 51 (63 S. E. 823); Hancock v. Ross, 18 Ga. 364; Graham v. Jones, 39 Ga. App. 610 (147 S. E. 902); Citizens Bank v. Valdosta Mill & Elevator Co., 34 Ga. App. 713 (3) (131 S. E. 126); Seaboard Air-Line Ry. Co. v. Henderson Lumber Co., 28 Ga. App. 391 (111 S. E. 220), and cit. This latter exception, however, would be immaterial in the present case unless the action should be construed as based upon a special contract; and the exceptions made do not require a construction of the petition in this regard. The court erred in not admitting in evidence a letter written by the plaintiff to the defendant Will Terrell, the execution of which was duly proved, and in which appeared the following statement by the plaintiff: “Since I have left there I have been trying to get some of the family to assist me, but could not have any luck, so please let me know what you are going to do at once. I am sorry that I am having to worry you, but times is hard and work is scarce. It isn’t work enough here for me to do to pay for a $1000.00 house. If you want pay for safekeeping the money, deduct what it is out and send me the rest.” This letter tended at least to rebut the plaintiff’s contention that the defendants did not find a house suitable to her. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.