Webster Cason & Associates, Inc. v. Lackie

Franicum, Judge. Where, as in this case, in a suit to recover $1,000 earnest money paid to the defendant real estate broker under a written offer to purchase certain described realty, one count of the two-count petition contained allegations appropriate to an action for money had and received, in that it alleged that the plaintiff had paid such sum to the defendant, and that the defendant retained said sum of money, and where the instrument attached as an exhibit showed that it was merely an offer on the part of the plaintiff to purchase the described parcel of real estate, which offer had never been accepted by the owner, it was error for the trial court to grant the defendant’s motion for a nonsuit, when, upon the trial of the case, the plaintiff introduced the written instrument offer [103] ing to purchase the property and proved the payment thereunder of the sum sued for. Since the evidence conclusively showed that no valid contract for the sale of the realty had ever been entered into, the defendant real estate broker was not entitled to retain as commissions the $1,000 earnest money paid by the plaintiffs. For the same reason the defendant was not entitled to recover on its cross action the alleged balance of the commissions it would have earned had the written offer been accepted and become a contract, and the trial court therefore did not err in dismissing the defendant’s cross action. Holland v. Riverside Park Estates, 214 Ga. 244 (104 SE2d 83). Argued February 7, 1966 Decided May 25, 1966 Rehearing denied June 28 and Judy 14, 1966. Barber & Rambo, OUn Rambo, for appellant. Troutman, Sams, Schroder ■& Lockerman, Harold C. McKenzie, Jr., Gerald P. Thurmond, for appellees. Judgment affirmed on the main appeal; reversed on the cross appeal. Felton, C. J., and Pannell, J., concur.