Lampros v. Chipley

WiNBORNE, J. Can a complete determination of the controversy at issue in this action be made without the presence of D. L. Morrell, the seller of the property to which his contract with plaintiff relates ? If not, the court must make him a party to the action. Gr. S., 1-73. From the pleadings, it appears (1) that the contract itself, made through defendants, sets out the amounts which make up the purchase price, and when same shall be paid, — specifying “$1,000 this day deposited with agent”; (2) that defendants received the $1,000 from plaintiff “as deposit on 428 Hermitage Court,” and “as a binder of the foregoing contract, and as evidence of good faith on the part of the purchaser”; (3) that defendants allege breach of contract by plaintiff, with consequent damages to D. L. Morrell and to defendants; (4) that defendants have retained the $1,000 “to protect their interest and the interest of the seller”; and (5) that the $1,000 is paid to Clerk of Superior Court to abide the orders of the Court in this action. In the light of these allegations, we are of opinion that the controversy at issue in this action cannot be completely determined without the presence of D. L. Morrell. The answer to the issue raised by defendants’ denial of the allegations of fraud set out'in the complaint will determine-the disposition of the $1,000 earnest money. If the jury should find that plaintiff was induced to enter into the contract with D. L. Morrell for the purchase of the property by reason of false and fraudulent representations made to her by defendants, as alleged in the complaint, she would be entitled to the return of the earnest money. But if the jury should find that no such fraud was perpetrated upon her, plaintiff would not be entitled to the return of the money. In either case it would seem that such rights as D. L. Morrell, the seller, may have in respect to the earnest money, would be affected. Hence the order below denying motion for an [240] order to make Mm party defendant, and to serve Mm witb process, is improvident and is Beversed. Defendants’ demurrer ore ienus to complaint entered in this Court is not sustained.