137 Ga. 586 | Ga. | 1912
The plaintiff contracted with the firm of Powell & Kendall, alleged to be composed of Charles J. Kendall, M. M. Kendall, and D. B. L. Powell, to purchase a certain “turpentine farm,” and paid to that firm $12,000 as part of the purchase-money. It was alleged, that the plaintiff was induced to enter into the trade by false and fraudulent representations of M. M. Kendall' and W. II. C. Cunningham, knowingly made; and that the firm of Cowart & Cunningham (composed of said Cunningham and J. S. Cowart) were simply confederating with Powell & Kendall to obtain money from the plaintiff upon the false and fraudulent pretence that the last-named firm had a valid title and lawful right to sell him the property, which neither firm had, the title to the property being in the Moye Naval Stores Company. The firm of Cowart & Cunningham had an option or contract of purchase with the owners; they contracted to sell to Powell & Kendall, who in turn made an agreement to sell to the plaintiff. The evidence showed that M. M. Kendall, at the request of Powell & Kendall, or one of its members, was requested by that firm to aid them in making the sale to the plaintiff, and was promised for his services one third of the profits arising from such sale. Of the $12,000 paid by the plaintiff to Powell & Kendall, $8,000 was by them turned over to the firm of Cowart & Cunningham; and the remaining $4,000 Powell & Kendall divided, one third to' each of the members of that firm and one third to M. M. Kendall for his services in connection with the sale to the plaintiff. After the failure of the parties to finally consummate the sale, the plaintiff brought a joint suit against’ the two firms named, in assumpsit for money had and received, to recover the $12,000 paid out by him. M. M. Kendall, W, PL C. Cunningham, and J". S. Cowart each filed a special plea, averring that he did not belong to the respective firm of which he was alleged to be a member, and the issues as to partnership were submitted to the jury along with the entire case. The following verdiet was returned and made the judgment of the court: “We, the jury, find in favor of the plaintiff, J. F. Pender, against each and all of the defendants, Powell & Kendall, a firm composed of M. M. Kendall, C. J. Kendall, and D. B. L. Powell, and Cunningham & Cowart, a firm composed of W. H. C. Cunningham and J. S. Cow-art, the total sum of $12,000, with interest from Nov. 26th, 1905, at the rate of 7 per cent, per annum therefrom. ” The defendants
Applying the principles above announced to the facts of this case, we do not think there was such a common receipt of the money paid by Fender to the two firms, Powell & Kendall and Cowart & Cunningham, and M. M. Kendall, as would imply a joint promise to return it. If Powell & Kendall received all the money paid by the plaintiff Fender, they would be primarily liable. But the evidence discloses that neither Cowart & Cunningham nor M. M. Kendall received the $12,000 sued for jointly with the other firm, and therefore, while they are not liable under the ruling here made, under the evidence in this case, for the entire amount of $12,000, they might be liable severally for whatever portion of it they each did receive, if any. From what has been said above, it follows that Cowart & Cunningham could not be joined in a suit with Powell & Kendall, and therefore a court of a county not of their residence would have no jurisdiction over them. And the same would apply to M. M. Kendall, if he is not a member of the firm of Powell & Kendall. It appears from the record that he had
The verdict of the jury found not only for the full amount of principal sued for by the plaintiff against, all of the defendants, but interest as well. It is insisted that interest could not be recovered, because no demand was made against the defendants for the sum sued for. Whether interest can be collected without demand in this ease need not be determined, as the judgment is to be reversed and the ease goes back; but we may remark that if a demand is necessary, the evidence shows that a demand was made on Powell & Kendall for the return of the money. It does not appear that a demand was made as to Cowart & Cunningham and M. M. Kendall.
Judgment reversed.