35 Ga. App. 517 | Ga. Ct. App. | 1926
Dissenting Opinion
dissenting. The petition in this case was substantially as follows: (1) P. J. Dunwody is a resident of Chatham county, Georgia. (2) On the 19th day of March, 1925, petitioner entered into a written contract with the said Dunwody whereby the said Dunwody gave petitioner the exclusive selling rights to all that certain house and lot in Chatham county, Georgia, in the City of Savannah, and known upon the map in the plan of said city as 915 Maupas Avenue; a copy of'said agreement being hereto attached. (3) By the terms of the said agreement neither the owner, P. J. Dunwody, nor any person acting for him, except petitioner, had the right to sell the said property, unless they accounted to petitioner for his commission, as set forth in said agreement. (4) Petitioner fully performed his part of the contract by devoting his time to finding a purchaser for said property and advertising it for sale at his own expense. (5) Petitioner shows that without his consent said P. J. Dunwody has sold the said property to M. G. Bishop at and for the sum of $5800. (6) Petitioner further shows that defendant has never given him any notice in writing of his intention to withdraw from him the exclusive selling rights of said property, as set forth and required
The copy of the contract attached to the petition was as follows:
“Savannah Peal Estate Board
“Listing Blank.
“To A. H. Barrington: In consideration of your efforts to sell the following property I hereby give the exclusive authority to sell the same. You are authorized to sell for the sum of $6,000.00, or any other price that may be agreed on hereafter, and I agree to pay you the regular commission adopted by the Savannah Peal Estate Board as noted on the back hereof, and I hereby agree to give ninety days’ notice in writing in .the event of withdrawal of the property from you for sale. Advertising to be at the discretion of the broker, and all costs to be at the expense of broker unless otherwise agreed upon in writing. I have the right to enter into this contract, and a good title will be delivered. I do yes desire the property advertised. You may put a sale sign on said property. ■The property to be sold is described as follows: 915 Maupas Avenue, 5 rooms and bath, garage and servants’ toilet. (Don’t put sign on this property.) Witness my hand and seal at Savannah, Ga., this 19th of March, 1925.
“P. J. Dunwody, Owner (L. S.)
“A. H. Barrington, Broker.”
Without objection, paragraph 8 of the original petition was stricken, and the following was substituted therefor: “Your petitioner further shows that the amount of damage that he has suffered by reason of defendant’s breach of contract in depriving your petitioner of the exclusive selling rights to said property by selling the property himself for $5800, while the contract giving your petitioner the exclusive selling rights to said property was still in force is $270, being the amount of commission that plaintiff would have received had he been allowed to make the above-de
Defendant demurred to the petition as follows: (1) The petition fails to set forth any cause of action. (2) The petition fails to show that plaintiff made sale of said property. (3) It appears from said petition that plaintiff did not make sale of said property. (4) Said contract declared upon and annexed to the petition lacks mutuality and is unilateral, for the reason that there is nothing in said contract making it obligatory upon plaintiff to make any effort to sell the property mentioned. (5) While the contract expresses the desire of defendant that the property shall be advertised, there is no obligation upon'the plaintiff to advertise it, this being entirely discretionary with plaintiff. (6) The 3d paragraph of said petition is the conclusion of the pleader, not borne out by any facts alleged or by the agreement attached to the petition. (7) The 4th paragraph fails to allege the name of the purchaser. (8) The 4th paragraph fails to allege how plaintiff advertised said property for sale. The court’s judgment was as follows: “Upon consideration of the foregoing demurrer, and of the petition as amended, the said demurrer is sustained on all grounds thereof and petition dismissed.”
The petition as amended was an action for damages for breach of contract. This being true, grounds 9 and 3 of the demurrer are, in my opinion, without merit.
The decision in the ease of Garfunkel v. Byck, 28 Ga. App. 651 (113 S. E. 95), holding that a contract the same in form and substance as the one under consideration was unilateral, is binding upon this court, and impels it to hold that this contract was originally unilateral. The question then arises as to whether or not said contract became bilateral and binding upon both parties by reason of the allegation in the petition that, “according to the terms of said agreement, he (petitioner) fully performed his part of the contract by devoting his time to finding a purchaser for said property and advertising said property for sale at his own expense.” I think it did. “Though a promise may be a nudum pactum when made, because the promisee is not bound, it becomes binding when he subsequently furnishes a consideration contemplated, by doing what he was expected to do.” Brown v. Bowman, 119 Ga. 153 (46 S. E. 410), and cit. In Hill v. Horsley,
Eor these reasons I do not agree to the judgment of affirmance.
Lead Opinion
A majority of the court holds, upon the authority of Garfunkel v. Byck, 28 Ga. App. 651 (113 S. E. 95), that the court did not err in sustaining the demurrer and dismissing the plaintiff’s petition.
Judgment affirmed.