Opinion
38459.
DECIDED OCTOBER 11, 1960.
Attachment. Fulton Civil Court. Before Judge Camp. June 6, 1960.
John L. Coney, for plaintiff in error.
Frank A. Bowers, John Brewer, contra.
1. Where the purpose for which the plaintiff parted with his money fails of accomplishment, the defendants cannot in good conscience retain the money, and the plaintiff is entitled to have it returned to him.
2. Where assignments of error become moot they will not be considered.
DECIDED OCTOBER 11, 1960.
James D. Broome, as plaintiff, filed an attachment in the Civil Court of Fulton County, Georgia, on March 22, 1960, and his declaration in attachment in said court on April 8, 1960, against H. J. Cavanaugh and David H. Gray, partners, doing business as Cavanaugh-Gray Co. On April 28, 1960, the defendants filed their answer and demurrers; on May 11, 1960, the plaintiff filed an amendment to his declaration and demurrers to the answer; on May 20, 1960, the demurrers were submitted to the trial judge, without oral argument, and the trial judge sustained the defendants' demurrer to the plaintiff's declaration in attachment on all grounds thereof and dismissed the declaration as amended, on the grounds that it failed to set forth a cause of action; on May 31, 1960, the plaintiff filed his motion to vacate and set aside the order of the trial judge of May 20, 1960, dismissing the declaration in attachment; said motion was heard on June 6, 1960, and after oral argument, the same was denied. To said order of the trial court of May 20, 1960, sustaining the defendants' demurrers and dismissing the plaintiff's declaration in attachment, and said order of June 6, 1960, denying and dismissing the plaintiff's motion to vacate and set aside the trial court's order of May 20, 1960, the plaintiff excepted and brings the case here for review.
1. The plaintiff by his declaration in attachment sought to recover money paid to the defendants pursuant to a written contract; the averments of paragraph 3 of plaintiff's declaration in attachment being as follows: "Petitioner contracted with defendants partnership, an employment agency, for their services in securing him a permanent position with a local employer, subject to limited travel, said contract was entered into in writing on or about the 15th day of January, 1960, at the defendants' office upon their printed form; a copy of which was not given petitioner, and the precise terms of which are, therefore, not all known to petitioner, but are well known to the defendants."
Paragraph 1 of the defendants' demurrer attacks the declaration in attachment on the grounds that "nowhere in the declaration is it alleged that the written agreement between the plaintiff and the defendants contained a provision that any employment secured for the plaintiff by defendants would be subject to limited travel on the part of the plaintiff, none of the reference to `limited travel' in the declaration alleging that such conditions were a part of the written contract between the parties, and not being a part of the written contract, the defendants would not be bound thereby." This ground of demurrer is not well taken. The language employed in paragraph 3 of the plaintiff's declaration in attachment, as set out above, clearly refutes this contention of the defendants; the pertinent part thereof being that the purpose of the contract, which is alleged to be in writing, was to secure a permanent position for the plaintiff with a local employer, with limited travel. The language here used was sufficient to withstand general demurrer, and the trial court erred in sustaining ground 1 of the defendants' demurrer.
Ground 2 of the demurrer addresses itself to paragraph 7 of the plaintiff's declaration in attachment and is likewise without merit for the reason that the plaintiff's amended paragraph 7 of the declaration in attachment supplies the deficiency complained of. The trial court erred in sustaining this ground of the defendants' demurrer.
Ground 3 of the defendants' demurrer asserts that the plaintiff's declaration in attachment shows on its face that the payment made to the defendants by the plaintiff, which he seeks to recover back in this action, was a voluntary payment, and, as such, cannot under Code § 20-1007, be recovered.
Code § 20-1007, supra, is as follows: "Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule."
Obviously the alleged facts here are not such as to bring this case within the purview of Code § 20-1007, supra. This action is based on an alleged written contract, the plaintiff alleging in his declaration in attachment, as amended, that he paid the defendants a fee in advance under a written contract for securing him a "permanent position with local employer with limited travel," when in fact the position secured by the defendants for him was not a "permanent position with local employer with limited travel." Since the purpose for which the plaintiff parted with his money failed of accomplishment, the defendants cannot in good conscience retain the money, and the plaintiff is entitled to have same returned to him. Chappas v. Sandefur, 93 Ga. App. 67 ( 91 S.E.2d 46). The petition alleged a good cause of action as against a general demurrer, and the trial court erred in sustaining same.
2. Under the above holding in division one of this opinion, the plaintiff's other assignments of error are now moot and will not be considered by the court.
Judgment reversed. Bell, J., concurs. Felton, C. J., concurs in the judgment.