9 S.E.2d 205 | Ga. Ct. App. | 1940
1. Where property is placed in the hands of a real-estate broker for sale on commission, the commission is earned when, during the agency, the broker finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner. Code, § 4-213; Phinizy v. Bush,
2. But where, as in the present case, it appears from the uncontradicted evidence that the plaintiff never produced a customer who was ready, able, and willing to buy, and who actually offered to buy on the terms expressly stipulated by the defendant, the owner of the property in *650
question, and that, before the sale of the property by the defendant himself to one who had been introduced to him by the plaintiff's agent as its prospect, the negotiations between such prospect and the plaintiff had come to an end, and that the defendant had not at any time interfered with the efforts of the plaintiff to effect a sale during the agency, a verdict in favor of the defendant was demanded as a matter of law, and the judge, before whom the case was tried without the aid of a jury, erred in rendering judgment for the plaintiff and in overruling the defendant's motion for new trial. Doonan v. Ives,
3. The appellate division of the civil court of Fulton County properly affirmed the judgment overruling the general demurrer, but erred in affirming the judgment overruling the defendant's motion for new trial.
Judgment reversed. Stephens, P. J., and Felton, J.,concur.
The defendant demurred to the petition as amended, on the ground that it sets forth no cause of action; that the facts alleged do not show that the defendant owes any sum to the plaintiff; that sufficient facts are not alleged to show that the defendant defrauded the plaintiff; and that sufficient facts are not alleged to show that the alleged sale was concluded by the efforts of the plaintiff. The court overruled the demurrer, and the defendant excepted pendente lite. The defendant answered and denied the substantial allegations of the petition, and further set up that it did not owe the plaintiff any sum whatever.
On the trial of the case before the judge without the aid of a jury the evidence was substantially as follows: Mrs. W. S. Kell, a licensed real-estate saleswoman in the employment of the plaintiff, inquired of the defendant whether she might sell for him a certain house and lot owned by the defendant at 1357 Ormewood Avenue S.E., in DeKalb County, and in the City of Atlanta. The defendant informed her that she might sell the house for him for $3900 cash. Shortly thereafter Mrs. Kell found a prospect, E. D. Busha, who offered a price considerably less than $3900, and this was refused by the defendant. Later Busha, through Mrs. Kell, offered to trade in a certain house and lot which was located at 116 Sycamore Drive in Decatur, and in which he held an equity. Busha was willing to purchase the property on a basis of $3900, provided that the defendant would accept as part payment his equity in the Sycamore Drive property at an agreed allowance of $1112, and let him put an F. H. A. loan on the Ormewood Avenue property, and *652 from the proceeds pay the defendant the balance of the purchase-price of $3900. The defendant did not accept this offer, being unwilling to allow Busha as much as $1112 for his equity in the Sycamore Drive property. The plaintiff, through its agent, Mrs. Kell, was never able to bring about a sale between the defendant and Busha. Busha subsequently purchased directly from the defendant the Ormewood Avenue property, after making him an offer of $3800, which was accepted by the defendant with the agreement that Busha was to transfer to him his equity in the Sycamore Drive property at an agreed credit of $600 and pay the balance of $3200 from the proceeds of a loan to be made with the United States Government on the Ormewood Avenue property. These facts are undisputed.
Mrs. Kell testified that the defendant had agreed to pay her employer, the plaintiff, five per cent. commission in the event she brought about a sale of the property for $3900, but he would not allow Busha $1112 for his equity in the Sycamore Drive property, and, "although I endeavored to do so, I could not get Mr. Landrum and Mr. Busha together;" that about a week later she learned that the parties had traded between themselves, and the defendant refused to pay a commission for "selling the house." On cross-examination she testified: "I do not remember telling Mr. Busha that I had given up the matter. I do not remember what I told Mr. Busha. It might have been possible that I did tell him I had given up the matter and could not get Mr. Busha and Mr. Landrum together. It might have been possible that I said I was through with the matter. I did not get them to sign any kind of contract. . . I did not have anything to do with them signing the final contract dated October 13, 1938."
E. D. Busha testified, that he told Landrum that the price of $3900 was all right, but that they could not get together on the amount to be allowed for the witness's Sycamore Drive property; that Mrs. Kell came to his place of business several times, and he made an offer to Landrum whereby he would receive $1112 for his equity and Landrum would receive $3900 for his property, but Landrum never accepted the terms; that he had seen Landrum's house while it was being built, and had inquired about it through his wife, but had not met Landrum until he was introduced to him by Mrs. Kell, that she came to his place of business on October 5, *653 1938, and told him she was through, and that she could not get the witness and Landrum together; that all of these transactions and interviews happened before the time he signed a contract with Landrum; that about a week later he called Landrum on the telephone and made a proposition to him, but it was refused; that a few nights later he called him at his home and talked to him, and offered $3800 for the Ormewood Avenue property, Busha to sign an F. H. A. loan for $3200 and Landrum to receive the proceeds, and Busha to convey to Landrum his equity in the Sycamore Drive property; that Landrum asked him if Mrs. Kell had anything to do with the matter, and if the plaintiff was still in it, and he told Landrum that Mrs. Kell had told him (Busha) that she was out of it, and that the plaintiff had nothing else to do with the matter; that shortly thereafter he signed the contract with Landrum, and Landrum again asked him if Mrs. Kell and the plaintiff had anything to do with the matter, and he told Landrum that Mrs. Kell had told him she was out of it and the plaintiff was also; that Landrum never did call him about the house, that he always went to Landrum, he wanted to live out in East Atlanta, and went to Landrum every time; that after Mrs. Kell told him she was out of the matter, and between that time and the time he signed the contract with Landrum, Landrum never came to him or called him, but he called Landrum, and Mrs. Landrum several times; and that he talked to Mrs. Landrum on the telephone about this house one night before Mrs. Kell ever introduced him to Landrum.
The defendant testified as follows: He told Mrs. Kell, if she could not sell the property for $3900, to let it alone. After she brought to him for signature a contract under which Busha was to procure an F. H. A. loan for $2800 and convey to him Busha's equity in the Sycamore Drive property, and which contract he refused to sign, she came to him and said that she could not do anything about the matter, and, if he could sell the house to anybody else, to go ahead; that all of this happened before he signed a contract with Busha; that about a week thereafter Busha called him and made an offer which was refused; that at that time he asked him if Mrs. Kell and the plaintiff had anything to do with the matter, and Busha said that she had told him (Busha) that she did not, and that she and the plaintiff were out of the transaction, and for the defendant to do whatever he could about it, this being about a *654 week after the defendant's last interview with Mrs. Kell; that a few nights later Busha called him again, and made an offer whereby he would sign an F. H. A. loan for $3200 and would convey to the defendant his equity in the Sycamore Drive property; that he again asked Busha if Mrs. Kell and the plaintiff were involved in the matter, and Busha told him that she and the plaintiff did not have anything to do with it and had dropped it and were out of it; that he finally agreed to accept Busha's offer, and sold Busha the house on the terms last named, agreeing further to build a fence around the Ormewood Avenue property, which he did; that Mrs. Kell did not have anything to do with the signing of the final contract with Busha; that he signed the contract after he had told Mrs. Kell to leave the matter alone if she could not get $3900 for the Ormewood Avenue property; that he did not go after Busha, never did telephone him; that Busha always came to him; that Mrs. Kell came to him some time before the signing of the contract with Busha, and told him that she could not get them together, could not do anything about it, and, if he could sell the house to somebody else, to go ahead; that he told her, some time before he sold the house, to leave it alone if she could not sell it to Busha for $3900, and to forget the matter; and that he finally paid the bills on the house which was under construction at the time of the negotiations, and lost $300 on this Ormewood Avenue property which was sold.
In evidence was the contract between the defendant and Busha, dated October 13, 1938, for the sale of the property in question, payable $600 cash, and the balance of $3200 to be paid from the proceeds of an F. H. A. loan of $3200 to be placed on the property by Busha.
The court rendered judgment in favor of the plaintiff for $190 and costs. The defendant's motion for new trial on the general grounds was overruled. The defendant appealed, assigning error on the overruling of the general demurrer, excepted to pendente lite, and on the overruling of the motion for new trial. The appellate division of the civil court of Fulton County affirmed the judgment of the trial judge and the defendant excepted.