52 S.E.2d 38 | Ga. Ct. App. | 1949
The petition was not subject to the defendant's general demurrer, and the trial judge erred in sustaining the demurrer and in dismissing the action.
Witness the hand and seal of Witness the hand and seal the seller, this 7[th] day of of the purchaser, this June, 1948. 5th day of June, 1948. Aasta K. Buchanan (L. S.) 11:50 Jack Russell (L. S.) a. m. Seller Purchaser W. B. Brittain (L. S.) W. B. Brittain (L. S.) Agent Agent."Under the sales commissions and rules shown on the reverse side of the contract the following stipulation appears: "The commission has been earned by the agent and is due and payable when the agent secures a purchaser who is accepted by the seller — signing of contract being prima facie evidence of consummation. Imperfections of title shall not invalidate commissions." *721
The defendant demurred generally and specially to the petition, the grounds of the general demurrer being: (a) that the petition did not set forth a cause of action against the defendant; (2) that no cause of action was set forth because it appeared from the petition and contract attached thereto as an exhibit that the plaintiff was not a party to the contract which was declared to be the basis of his suit. The court sustained the general demurrer and dismissed the action, and the plaintiff excepted.
The petition shows that the owner of certain described property listed it for sale with the plaintiff, a real-estate broker, at a cash price of $15,750, and that the plaintiff within four or five days thereafter showed the property to the defendant as a prospective purchaser, who signed a written contract to purchase the property for $13,500, cash, and this offer was accepted by the owner, who also signed the contract. This contract was signed by the owner as seller, by the defendant as purchaser, and by the plaintiff as agent, and stated that the undersigned seller agreed to sell and the undersigned purchaser agreed to buy, through the plaintiff as agent, the described property, and that "The agent in negotiating this contract has rendered a valuable service and seller agrees to pay agent's commission in accordance with the schedule printed on the reverse side hereof. If sale is not consummated due to default of purchaser, seller shall not be obligated to pay any commission, but purchaser hereby agrees to pay said commission to said agent." The contract also stated that the purchaser had paid to the seller's agent (the plaintiff) $1000, as earnest money to be applied as part payment on the purchase-price of the property, and if the sale was not consummated due to the purchaser's default, this money was to be applied to the agent's commission and the balance to the seller's damage caused by the purchaser's default. But if a sale was not consummated for reasons other than the purchaser's default, then the earnest money was to be refunded to the purchaser. This was a valid contract and could have been enforced by either the seller or purchaser. It was not *722
a unilateral contract as contended by the defendant. In this connection, see Palmer Brick Co. v. Woodward,
Judgment reversed. Felton and Parker, JJ., concur.