55 S.E.2d 174 | Ga. Ct. App. | 1949
1. 2. An action brought by real-estate brokers to recover damages for a breach of an exclusive-listing contract is subject to general demurrer when it fails to allege that the brokers had fully complied with the license laws, whether the point was argued and considered in the trial court or not.
3. The listing contract was not unilateral and without consideration under the facts alleged in this case.
The defendant, individually, filed a general demurrer and several special demurrers which were later cured by amendment. The court overruled both the general and special demurrers of the defendants respectively. To this ruling the defendants excepted.
1. The defendants' first contention is that the petition was fatally defective in that there is no allegation that the plaintiffs had complied with the license law as required by Code § 84-1413, which states: "No person, firm or corporation shall have the right to enforce in any court any claim for commissions, profits, option profits, or fees for any business done as real-estate broker or salesman without having previously obtained the license required under the terms of this Chapter." We agree with this contention. In the case of Bernstein v.Peters,
It is contended by the defendants in error that a provision in the contract attached to the petition pertaining to "other licensed broker" amounts to an allegation that the plaintiff was a licensed broker. Whether the plaintiff was a licensed broker is not a matter of contract and an agreement that he was one would not make him one. The petition, plus the contract, alleges no more than that the parties agreed that the plaintiff was a licensed broker, or that the plaintiff represented that he was, and the defendants assumed the representation to be true. The provision in the contract was no more than a self-serving declaration and, together with the petition, did not amount to an affirmative allegation that the plaintiff was a licensed broker. *7
2. The plaintiffs contend that the question passed upon in the proceeding division of this opinion was not raised in the lower court, and, therefore, should not be considered by this court when raised for the first time here. This contention is without merit for the reason that a general demurrer necessarily raised the question of whether a cause of action was set forth and whether this particular point was argued in the lower court, is immaterial since any point necessary to determine the sufficiency of the cause of action was raised by general demurrer and is properly before this court. Moody v. Foster,
3. The defendants' second contention is that this listing contract is unilateral and without consideration, and, therefore, unenforceable. For authority the defendants cite: Ocean LakeRiver Fish Co. v. Dotson,
4. In view of the ruling in the third division of this opinion it is not necessary to decide the defendants' contention that there was a substantial variance between the sale contract as made and the listing contract under which the plaintiffs claim their commission, as the action is not one to recover commissions.
Since the plaintiffs failed to allege that they had complied with the license law pertaining to real-estate brokers, the court erred in overruling the general demurrer.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.