Guaranty Title Insurance v. Wilson , 123 Ga. App. 3 ( 1970 )

Pannell,

Judge. This was an action, denominated an action for money had and received brought by a real estate broker against the closing agent (which was .also the title insurer) seeking recovery of real estate commissions on certain contracts for sale of real estate attached to the petition as an exhibit. On the trial, it appeared that the complainant and other real estate brokers co-operated in getting together contiguous parcels for sale to a single purchaser. The earnest money, in the form of a check, was turned over to one of the brokers for deposit in his escrow account. Subsequently, because the old contracts had expired, new ones were executed by the sellers and the purchaser, which recited that the earnest money in each contract had been deposited with the same broker. These were the contracts attached to the complaint. At the time set for closing, the broker with whom the earnest money had been deposited was unable to produce the funds; however, the closing was had, deeds executed and delivered, and the defendant closing agent issued checks for the commissions for which complainant seeks recovery, but these checks, at the request of the purchaser, with no objections from the sellers were not delivered to complainant. The closing statements showed the earnest money was "refunded.” The testimony, however, was to the contrary. The purchaser, according to the closing statements, apparently made good the loss by paying the purchase price without deducting therefrom as a credit the earnest money previously deposited. It is shown without dispute that the seller was to pay the particular commissions of the complainant and the closing statements show funds therefor were deposited with the defendant closing agent by the sellers. It is undisputed the defendant still has the funds and has no claim of its own thereto. At the close of the plaintiff’s testimony, the defendant made a motion for nonsuit on the ground that the plaintiff’s own testimony showed he had not ratified or acquiesced in the contract sued upon. This motion was overruled and at the close of all of the evidence, the trial judge directed a verdict for the complainant. The defendant closing agent appealed to this court, enumerating both the rulings as error. Held:

1. That the particular contracts of sale attached to the petition, some of which provided for the division of the real estate commissions and for complainant’s share thereof, had not been expressly approved or ratified by the complainant broker, as he so testified, would not prevent a recovery by him of the commissions so provided therein and in the closing statements signed by the purchaser and the sellers similarly providing for the division of the commission and the complainant’s share as to all of the transactions. The bringing of this action, seeking recovery of such commissions paid to the stakeholder defendant by the sellers for distribution was a sufficient ratification of the division of the commissions by the complainant and the other brokers, if any be needed. See Code Ann. § 3-108. There was therefore no error at the conclusion of the plaintiff’s evidence in overruling defendant’s motion for "nonsuit.”

2. Assuming, without deciding, that the real estate brokers were engaged in a joint venture and that the complainant, as a result thereof, was liable to the purchaser for the default of the broker with whom the earnest money was deposited, this would constitute no defense by the defendant stakeholder for its refusal to pay the complainant funds held by it and paid by the sellers under its obligation to pay complainant’s commission. The stakeholder cannot, as against a claimant entitled to the fund, set up as a defense a debt owed by the claimant to another, for which the stakeholder is in no way liable either primarily or secondarily or in an action over, in the event of disbursement to the claimant of the funds so held. The trial court did not err in directing a verdict for the claimant and in overruling the motion for new trial based on the alleged error in the directing of the verdict.

Argued May 5, 1970 Decided November 24, 1970. Wall & Campbell, Alford Wall, for appellant. McCord, Cooper & Voy les, Charles M. Voyles, for appellee.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., and Whitman, J., concur. Been, Quillian, and Evans, JJ., dissent. Eberhardt, J., disqualified.