Ballew & Huston v. Blakeny

(after stating the facts as above).

[1] The first assignment of error predicates error in entering judgment “for court costs” in favor of the plaintiff against the First National Bank. This was error, both in view of the pleadings and evidence and the agreement of the parties. The bank has never made claim to the money, and was willing to pay it to the rightful owners, both before and after suit was filed. The assignment of error is sustained, and the judgment is modified in that respect.

[2] The second assignment predicates error in rendering judgment against A. B. Moore. Ballew & Huston were acting, in making the contract of sale and in the deposit of the earnest money, as agents for A. B. Moore, and the effect and extent of the. judgment is merely to adjudicate against A. B. Moore, in favor of the plaintiff, any interest A. B. Moore may have in the earnest money so deposited for him and in his behalf. A. B. Moore entered a general denial to the plaintiff’s petition in claim of the earnest money for default in the contract, and did not file a disclaimer of any legal interest in the money, and did not testify that he never authorized his agents to make the contract of sale. The contract of 'sale was for him and in his behalf as owner of the land, and as principal in the agreement he was a necessary and proper party to the suit. The assignment is overruled.

The third assignment assails the sufficiency of the evidence to show such nonperformance of the contract of sale as to entitle the plaintiff to recover the money sued for. We conclude that this assignment should be overruled.

There' is no reversible error in the fourth assignment of error, and it is overruled.

The judgment is modified and affirmed.

On Rehearing.

The motion for rehearing is granted only in so far as it seeks to modify the judgment of the county court. The judgment authorizes a recovery and ' execution against each of the defendants severally and jointly for the $600 sued for. The judgment should be corrected, s* as to provide that the payment to the plaintiff by the bank of the $600 should be in full satisfaction of the entire judgment.