Little & Green v. Davis, 140 Ga. 212

Little & Green v. Davis

140 Ga. 212 | Ga. | 1913

Beck, J.

(After stating the foregoing facts.)

1. We do not think that the court erred in overruling the demurrer to the petition for interpleader. Under the allegations of the petition the sole question for determination was, which of the two parties whom the plaintiff sought to have interplead had procured a purchaser? The petitioner admitted that he owed one or the other the sum of $387, and set up facts to show that this identical sum was due by him to one or other of the two real-estate firms. The petition made him practically a stakeholder, owing but one debt to one of two parties, which he could not safely pay to either without the hazard of having to pay the debt twice; and the question as to which was the rightful claimant of the debt depended, according to his allegations, upon the determination of a single issue of fact, which was, as we have stated, who had procured the purchaser? This was a question of fact, in the solution of which, under the allegations of the petition, the petitioner had no interest whatever. And moreover, this issue of fact (the sole issue for determination before it could be rightly determined which of the two claimants was entitled to the fund) was an issue made by the claimants themselves, in the suit brought by one of them and in the suit which the other was threatening to bring. We mean by this that this plain, single issue of fact was involved in the two suits, the one actually brought and the other threatened, as stated in the petition. Under the allegations of the petition the plaintiff therein clearly owed but a single debt. No question of a double liability could arise under the allegations of the petition; and consequently the object of the petition for interpleader was against the danger of a "double vexation against a single liability.” The allegations of the petition, taken as true, show the right of the plaintiff to an order requiring the defendants to interplead.

2. But upon the hearing to determine whether the injunction should be granted and the parties required to interplead, under the issues made by the allegations contained in the answer of the plaintiffs in error and the evidence submitted to support these al*215legations, a different ease from that made by the petition was disclosed. Under the allegations of the answer filed by Little & Green and the evidence introduced in support of that answer, Davis, the petitioner, ceased to be a disinterested stakeholder; because, under one theory of the evidence, Davis had agreed in writing to pay the commission to Little & Green, “subject to agreement with L. C. Green, a member of the firm of Little & Green.” As to the meaning of that condition “subject to, agreement with L. C. Green,” there was an issue of fact between Davis and Green; Davis testifying that the agreement between him and Green was to the effect “that the commission should be held by the said Davis and should be paid over by him to whichever one of said real-estate firms should be entitled thereto according to a decree of court;” while L. C. Green testified that the words “as per agreement with L. C. Green,” which were inserted in the sales contract by Davis, had no reference to any agreement to pay the money into court or to allow the court to pass a decree as to whom the money belonged, but these words were inserted before the suit by Little & Green against Davis was filed, and had reference to a statement of Green to Davis when Davis refused to pay Green his commission; that this 'agreement was a proposition by Green that if Davis should pay Green the commissions, Green would give to Davis a good and solvent bond in an amount not less than twice the amount of the commissions, conditioned to reimburse Davis should Davis ever have to pay this commission to another agent; and that this was the only agreement ever made by Green and Davis, and this statement was made before suit was filed against Davis for Little & Green. Again, while it is alleged in the petition that there was a universal custom in the City of Atlanta, well known to defendants and all dealers in real estate, that when the same piece of property was placed for sale with a number of real-estate agents, only one real-estate commission should be due for the sale of the property, and the same was to be paid to the party bringing about the sale, and while this allegation was supported by the testimony of a witness introduced by the plaintiff, it was controverted on the hearing and a sharp1 issue raised thereon by the testimony of L. C. Green, who testified that from an experience of between two and three years in the real-estate business in Atlanta, and being familiar with all the customs governing the trade, he could and did swear that there was no eus*216tom in Atlanta to the effect that only one real-estate commission was to be paid for a sale of property listed with more than one agent, but that in every such case the number of commissions was a matter of contract in each case. With the introduction of this conflicting evidence in reference to the meaning of the words, “subject to agreement with L. C. Green,” and. upon the subject of the custom of paying commissions to only one agent (whether the testimony of Davis or that of Green was true with reference to the agreement, or whether the testimony introduced by the plaintiff or that introduced by defendants with reference to the custom was true), the character of the petitioner as a disinterested stakeholder vanished, and he stands revealed clearly as an antagonist of Little & Green and interested in destroying the effect of the written contract between him and Little & Green to the extent of eliminating from that contract a promise to pay the commissions to Little & Green, taking from them a bond for indemnity. Under Davis’s theory of the case, as developed by the evidence, he was interested as against Little & Green to the extent of removing them from the advantageous position of the holder of a written promise to pay, to 'a level with the other claimants of the debt, W. L. & J. 0. Dupree, as mere claimants of the fund, with the validity of that claim depending upon the establishment of the fact that they had effected the sale. Having under the evidence been divested of the character of a mere stakeholder, Davis was no longer in position to enforce his denrand • for interpleader between Little & Green and the Duprees, and the court erred in holding otherwise.

Judgment reversed.

All the Justices concur.