152 Ga. 829 | Ga. | 1922
“Where property has been listed for sale with two or more real-estate brokers, and one of them, with the knowledge of the owner, superior court. February 14, 1921.*830 has interested a customer in the purchase, and, while the negotiations with the broker are still pending, the owner proceeds to close the sale with the same customer through another broker, the second broker being the first to present the customer as ready, able, and willing to buy, and actually offering to buy. at the price and on the terms stipulated by the owner, and where the owner, pending such negotiations, has committed no act. of bad faith, amounting to a failure to remain neutral between the brokers, or to an interference in favor of the broker actually closing the sale, must the efforts of the broker thus actually closing the trade be regarded, as a matter of law, as the procuring cause of the sale, so as to exclude the claim against the owner for commissions by the other broker, whose prior negotiations were then still pending ? ”
Where the services of a broker, as well as those of another broker, have conjointly contributed to the successful termination of negotiations resulting in the sale of real estate for an owner, the question which of the brokers is entitled to commissions from the owner for effecting such sale depends upon whose efforts were the primary, proximate, and procuring cause of the sale negotiated. The broker whose services and efforts were the primary, proximate, and procuring cause of the sale would be entitled to the commissions. Beougher v. Clark, 81 Kans. 250 (106 Pac. 39, 27 L. R. A. (N. S.) 198); Votaw v. McKeever, 76 Kans. 870 (92 Pac. 1120).
Where one broker, with the knowledge of the owner, has interested a customer in the purchase, and, while negotiations with the broker are still pending, the owner proceeds to close the sale with the same customer through another broker, who first presents the customer as ready, able, and willing to buy, and actually offering to buy, at the price and on the terms stipulated by the owner; and where the owner, pending such negotiations, has committed no act of bad faith amounting to a failure to remain neutral between the brokers, or to an interference in favor of the broker actually closing the sale, the broker thus actually closing the trade can not be said, as a matter of law, to be the one whose efforts were the primary, proximate, and procuring cause of the sale. Under such circumstances it becomes a question of fact as to which broker was the proximate, predominating, and procuring
Where a broker for the sale of property notifies the owner that he has a customer, and introduces such customer to the owner, and where the negotiations between such broker and such customer are pending and have hot fallen through, the owner can not, with the knowledge of the facts, complete the purchase through another agent and avoid his liability for the commission due the first broker. Beougher v. Clark, 81 Kans. 250 (supra); Jennings v. Trummer, 52 Ore. 149 (96 Pac. 874, 23 L. R. A. (N. S.) 164, 132 Am. St. R. 680); Day v. Porter, 161 Ill. 235; Rigdon v. More, 226 Ill. 382 (80 N. E. 901).
The law will not permit one broker who has been entrusted with the sale of land, and is working with a customer whom he has found, to be deprived of his commission by another agent stepping in and selling the land to the customer so found by the first broker. Williams v. Bishop, 11 Colo. App. 378 (53 Pac. 239); Clifford v. Meyer, 6 Ind. App. 633 (34 N. E. 23); Hogan v. Slade, 98 Mo. App. 44 (71 S. W. 1104); McCormack v. Henderson, 100 Mo. App. 647 (75 S. W. 171); Holland v. Vinson, 124 Mo. App. 417 (101 S. W. 1131); Gilmour v. Freshaur, 126 Mo. App. 299 (102 S. W. 1107); Wood v. Wells, 103 Mich. 320 (61 N. W. 503); Elmendorf v. Golden, 37 Wash. 664 (80 Pac. 264).
Between the principal and the broker the ntmost good faith must be exercised. Jennings v. Trummer, 52 Ore. 149 (supra).
Hnder the facts recited in the above question it can not be said, as a matter of law, that the second broker was the procuring cause of the sale; and we answer this question in the negative.
The general rule is, that, where the owner of property employs a broker to sell the same, in order to earn his commissions the broker must procure a purchaser who is able, ready, and willing to buy, and who actually offers to buy, on the terms stipulated by the owner. Phinizy v. Bush, 129 Ga. 479 (59 S. E. 259); Civil Code, § '3587. Where a broker employed to negotiate a sale of a parcel of land procures a purchaser ready, able, and willing to purchase upon terms satisfactory to the principal, the principal can not defeat the broker’s right to commission by taking the proceeding out of the hands of the broker and completing the sale himself. Gresham v. Connally, 114 Ga. 906 (41 S. E. 42). The same result would follow if the owner dealt with the customer through another broker. Jennings v. Trummer, 52 Ore. 149 (supra). Which of two brokers, both of whom are employed to sell a piece of real estate, and who expended effort in attempting to sell the same, is the procuring cause of the sale, is usually a
We understand, from the questions propounded by the Court of Appeals, that that court inquires, and wishes instructions, whether, under the facts stated in such questions, either of these two brokers, as a matter of law, is entitled to commissions for the sale of this property; and not whether a finding in favor of either broker would be contrary to the evidence or to the law. So understanding the purport of these questions, we answer the third question in the negative. There appear in the record other facts which may or may not make a case for the plaintiff, and which may or may not demand, as a matter of law, a finding in his favor. It appears that the plaintiff took the prospective customer to the premises on Saturday, before any sale was effected; and on that day the defendant took the first broker and this customer over the premises. This inspection of the premises and this interview between the purchaser and the owner, in the presence of the first broker, resulted in an understanding, according to the contention of the plaintiff, by which the wife of the purchaser was to see this property on the following Sunday afternoon. The customer was to see the plaintiff about the purchase of this property on the next Monday. On Saturday night the first broker called up the owner and informed her that the purchaser made an offer for this property, less than her price, which she declined. The purchaser said he would give the owner’s price, if his wife was pleased with the property; but it does not -appear that this fact was communicated to the owner. On the following Sunday afternoon, after the above inspection of this property by the purchaser, the latter went out to see the same. At that time the second broker was at the premises, showing the same to other customers. It appears that the second broker told the owner that she need not be uneasy about selling this property, and that if she did not sell it he would buy it. On this occasion the customer asked the owner if she had sold the house, and she replied that she had not, but to the first one who came to her with a cheek the next day she would sell the same. On the next day the second broker went to the house of the owner and informed her he had sold the premises. The owner states that she did not
It has been held that where the owner of real estate closes a deal with a customer of a real-estate agent, through other agents, and at a lower price than was named to the first agent, while the latter’s authority is unrevoked, and he is still working with the customer at the price named to him, he must pay the agent his commission. Hogan v. Slade, 98 Mo. App. 44 (supra); Holland v. Vinson, 124 Mo. App. 417 (supra); Clifford v. Meyer, 6 Ind. App. 633 (supra); Grove Realty Co. v. Adair, 26 Ga. App. 220 (105 S. E. 735).
But as these additional facts are not embraced in the questions propounded, this court does not undertake to say what weight should be given them, or whether they, with the facts stated in the questions propounded, demand a verdict for the plaintiff.
A petitioner for certiorari in a case in the municipal court of Atlanta, who has made no motion for a new trial therein, nor appealed to the appellate division thereof, has no right to urge that a finding and judgment in that court, on a trial without a jury, is contrary to the weight of evidence. Section 42, paragraph (a), of the act creating the municipal court of Atlanta (Ga. L. 1913, pp. 145, 167) provides: “Upon the rendition of a verdict of a jury in said court, or upon the announcement of judgment by the court in a case tried without a jury, any party to said cause, or his counsel, may make an oral motion for a new trial in the said court,; and unless an oral motion for a new trial shall be made upon the rendition of judgment or the finding of a verdict,
In a case in the municipal court of Atlanta, where no jury is demanded and the trial judge passes upon the issues of law and fact involved and renders judgment, that judgment or the judgment of the trial judge overruling an oral motion for a new trial may be reviewed, by certiorari, without first taking an appeal to the appellate division of that court from the judgment on the oral motion for a new trial. Taylor v. Mutual Benefit Asso., 146 Ga. 660 (92 S. E. 47).
Subdivision (b) of said section provides, that, should the trial judge deny such oral motion for a new trial, an appeal will lie to the appellate division of said court, except upon two grounds: (1) that the verdict found or judgment rendered is contrary to the evidence and the principles of equity; and (2) that said verdict or judgment is decidedly and strongly against the weight of the evidence; which excepted grounds for new trial shall not be otherwise urged than'in such oral motion, “-and as to which excepted grounds the order denying ” the' oral “ motion for new trial shall be conclusive, and such ground shall not be urged upon appeal from such order, nor by writ of error.” This court has held that “ subdivision (b) of section 42 [of this act] denies to a petitioner in certiorari, or a plaintiff in error, seeking a review in the Court of Appeals, the right to urge the question of the sufficiency of the evidence as a ground for reversal.” Johnston v. Brenau College-Conservatory, supra.
That was a decision by a full bench of this court, and is controlling. On the strength of that decision we answer paragraph