"Cаreer case” is a term used by lawyers to describe litigation which contains complex claims and lengthy legalities to the extent that extraordinary amounts of time and effort are necessarily required of the advocates in representing their clients. Such appellation applies to the instant situation. Cоnsider merely numbers: there were three plaintiffs, two defendants, one rejected intervenor, and eight attorneys officially listed as representing these six parties. The result is an appellate record of 176 pages with an index thereto of 71 entries and a nine-volume trial transcript totaling 1,668 pages covering testimony of 19 witnesses and more than 70 documentary exhibits. In behalf of their clients the able attorneys have furnished this court with nine excellent briefs. Additionally, in fulfillment of their advocacy of their clients’ cause, they have referred us to the record and extensive briefs in another case involving some similarities recently ruled upon by a different division of our court.
Personal prefatory pensive ponderings, 1 such as the foregoing, recognizably play partial part in this court’s eventual decision. Yet when an opinion is limited in length when compared to such a numerical situation, the parties and their advocates who have put so much into their cause may not realize that the participants on the bench have likewise devoted much worry, study, and toil, towards our goal of making certain that our judicial *347 decision represents the correct legal determination.
The instant brouhaha stems from a suit seeking commissions of $210,000 filed by two licensed real estate brokers, Brannan, Marriott & Turner, Inc. ("BM&T”) and Daniel B. Kenerly d/b/a Kenerly Realty Co., against Kingston Development Co. ("Kingston”). The clаim was based upon an agreement allegedly made by defendant to pay a fee of 10% to plaintiffs by virtue of their having performed their contract to obtain a purchaser for a tract of land in Gwinnett County owned by defendant company. An intervenor plaintiff, Alvin Ashley, and a co-defendant, the Presidential Realty Corporation ("Presidential”), were added by consent. An application for intervention as a plaintiff by Linda Poland, an agent of Kenerly, was denied. Instead of the transaction between Kingston and Presidential being consummated by the usual deed of conveyance from seller to buyer transferring the property which was Kingston’s principal asset, the two corporations worked out a stock swap for tax purposes. Thereby all of Kingston’s stock was exchanged by Presidential for Presidential’s issuance of specified amounts of its restricted stock to the six individuals who constituted Kingston’s sole stockholders. The result was that Kingston becаme a subsidiary of Presidential. There is no contention here that this method was adopted as a device to avoid payment to the brokers of any amounts which might have been owed them nor is there any connotation of wrong-doing therein. In fact, although appellant urges the absence of a legally binding obligаtion upon the corporation, appellant argues this suit should have been brought against the stockholders as being liable as individuals on a quantum meruit basis. Other facts will be discussed in this opinion where we deal directly with their legal implications.
At the end of a two-weeks trial which by agreement was held before a single judge without a jury, judgment was rendered for $171,250 in behalf of BM&T against Kingston based upon nineteen findings of fact and seven conclusions of law derived therefrom. A motion for new trial and/or modification of said findings, conclusions *348 and judgment pursuant to Code Ann. § 81A-152 (b) was then filed. After that motion was overruled this appeal followed.
It should be noted that thе trial court’s judgment also included a decision on the claims of the other litigants inter sese, excepting Linda Poland, but we are not called upon to consider those rulings.
1. The legal principle which is determinative of many of the questions so capably presented by all nine briefs on this appeal was first enunciated in 1853 by Justice (later Chief Justice) Warner
2
in
Wiley, Parish & Co. v. Kelsey,
As we pointed out in
Pinkerton & Laws v. Atlantis Realty,
Concomitant with this principle is the directive that "After judgment every presumption and inference favors it and the evidence must be construed to uphold rather than to destroy it. [Cit.]”
Givens v. Gray,
2. From our review of the transcript and our determination that there is present therein the necessary amount of testimony to satisfy the "any evidence” principle we must rule adversely to appellant on those enumerations of error which contest the trial judge’s findings of fact. Accordingly, we hоld there is no merit to enumerations Nos. 4, 5, 6, 7, 8, 9, 11, 12, 14 and 15.
3. The tenth enumeration of error attacks the court’s legal conclusions dealing with an allegation as to dual agency. Appellant contends the court erred in its ruling "that a dual agency, to be effective in any contract arising therefrom, must have the consent of all the principals,” and that "[tjhose principals may avoid the contract at their election if they acted promptly.” The twelfth enumeration is similar in urging "The court erred in concluding as a matter of law that the brokers acted promptly to avoid the contract between BM&T and the Kingston shareholders.”
*350 The thrust of appellant’s argument attacking these legal conclusions is that John Carson who was a vice-president of BM&T and also a stockholder of Kingston negotiated a commission agreement on October 8 between Kingston’s six shareholders including himself and BM&T which changed the alleged original agreement between BM&T and Kingston. We find these two enumerations (10 and 12) to be without merit because the legal conclusiоns resulted from factual findings concerning the nature of the agency, the limitations of the agent’s authority, the knowledge of the principals concerning the agent’s activities and their reliance thereon. The trial judge’s findings of fact as to these were contrary to the appellant’s assertions.
4. Assignments of error numbеrs 15, 16, 17 and 18 attack the trial court’s legal conclusions that the stock swap between Presidential and Kingston’s stockholders represented fulfillment of the agreement by the broker with Kingston as a corporation to find a purchaser for Kingston’s Gwinnett County land.
Stripped to its basics the proposition presented can be stated thusly: Can a property owner who contracts with a licensed broker to pay as commissions a stated percentage of the sales price of its land be relieved of that contractual liability for commissions through a change in the form of the transaction from the usual seller’s deed of conveyance into an exchange of corporate stock between the parties? We recognize the transaction’s legal results are that (1) the corporation (Kingston) still holds legal title to the realty and (2) the corporation is transformed into a subsidiary of the parent company which had sought to purсhase the property. Jurisprudential pragmatism prevents the exaltation of legalities to a sacrosanct status in disregard of realities. Courts do in fact recognize the truth implicit in the Coca-Cola slogan "It’s the real thing.” This practical approach leads us to rule that the contractual commissiоns commitment continues enforceable against Kingston. Such "real thing” conclusion is confirmed by the fact that Presidential in its annual report to its stockholders regarded the acquisition of the Gwinnett County property as a purchase by Presidential (R. 1240 G, J and *351 X; R. 1421 I and R).
Philosophically, we see no reason why such reverse pierсing of the corporate veil should not be enforced even though no fraud is alleged. In a case factually similar to that at bar the Supreme Judicial Court of Massachusetts ruled for the broker in Morad v. Haddad,
In urging that we should impose the liability, if any, on the stockholders rather than the corporation, appellant makes a persuаsive presentation concerning income tax aspects. This court is not called upon here to decide if payment of the judgment would be an unauthorized distribution of assets to stockholders or a deductible corporate expense. We do not deem these tax features to require any deviatiоn from our ruling nor need we point out to knowledgeable counsel that the instant case results from genuinely adversary litigation. See Commissioner v. Estate of Bosch,
During the pendency of this Appeal an opinion was rendered in
Sims v. Mayflower Apts.,
Similarly we can not regard the Sims case as holding contrary to the views herein stated because the ratio decidendi was the failure of the broker to show that the contractual condition precedent (the death of the corporation president within the specified timе period) had occurred. The discussion in the opinion beginning at page 699 is obiter dicta being prefaced with the phrase, "Assuming arguendo.”
In the rendition of the instant opinion adverse to Kingston we had not made any ruling herein contrary to the Allison or Sims rulings.
5. The next two enumerations of error (19 and 20) present for consideration the quеstion of whether BM&T was entitled to the contract rate of 10 percent rather than quantum meruit. Appellant asserts that the percentage figure was based upon procurement of a buyer' at the purchase price of three million dollars. Accordingly, appellant argues that "absent a binding contraсt between BM&T and the Kingston shareholders, BM&T is entitled to a commission equal only to the reasonable value of its services.” It is now well established as stated in the trial court’s conclusion (R. 152) that "in order for the real estate broker to earn its commission it was not necessary that the terms of the sale be those which were originally proposеd and that the broker is entitled to its commission regardless of the fact that the owner, itself, concludes the sale upon a price less than and under terms different from those at which the broker was authorized to sell.
Graves v. Hunnicutt,
6. The next enumeration of errоr deals with disposition in the trial court of a defense which had been added by amendment contending that the commission rate of 10% represented a "violation of the Sherman Anti-Trust Act, 15 U.S.C. § 1 and the Constitution and Public Policies of the State of Georgia.” (R. 76). This added defense was stricken on the basis that the Civil Court of Fulton County was "without jurisdictiоn of such subject matter.” (R. 80). This was a pretrial ruling made by a judge other than the jurist who presided at the trial. The presiding judge permitted the defendant to introduce into evidence the contentions raised by this defense. This included the decree of the U. S. District Court in United States of America v. Atlanta Real Estate Board. (T. 1628-1633; Defendant’s Exhibit K-36). With this еvidence being in the appellate record, the claimed defense comes within the ambit of Code Ann. § 81A-115 (b) as being an issue treated in all respects as if it had been raised in the pleadings. Accordingly, if the original dismissal of this defense was error, it must be considered harmless.
7. The final enumerations of error (22 and 23) deal with the court’s order refusing to permit Linda Poland to intervene as a party plaintiff, the contention being that she was an indispensable party. Her petition for intervention shows her claim is made as an agent of
*354
Kenerly Realty Co., one of the original plaintiffs along with BM&T. (R. 117). There was no error in denying the Kingston motion.
Midland National Life Ins. Co. v. Emerson,
8. The prior rulings herein dispose of the other enumerations of error (1, 2, 3, and 13).
Judgment affirmed.
Notes
An avid alliteration aficionado asserts alphabetical addiction affects all attorneys acting as ardent advocates. .
Hiram Warner was one of the illustrious triumvirate, the other two being Joseph Henry Lumpkin and Eugenius A. Nisbet, who constituted our Suрreme Court when first created on December 24, 1845. His memorial in