*1 et al. BANK OF ROME NATIONAL CITY 39004. v. GRAHAM. March 9, 1962.
Decided *4 Wright (cid:127).& G. Walther, Robert Wal- Hoyt, Magruder, Rogers, n & Fullbnght Henry Fullbright, Jr., plaintiffs J. ther, Duffey, error. in Clary, Horace T. contra. Clary Kent, &
Parker, as it does Judge. petition seeking The voluminous Bell, defendants, three allege cause of action each upon upon an action on contract based initially rested its cause real broker for the allegedly earned commissions to the amendjnent, estate. there was added Later, by tort separate and distinct cause of action founded alleged conspiracy between the three defendants consisting of an wrongfully petitioner the commis- deny fraudulently sions the sale. due him on that an
It
in our law
amendment to
is well settled
changes
cause of
action from
based
one
tort
petition subject
on contract
founded
renders
one
Horne
Skinner,
demurrer.
503 original charged petition City that the defendant National Bank scope authority acting agent Rome within the its of of who these property, for owner of was disclosed. Under original petition action circumstances the stated no cаuse of Daniel, against Bank of Rome. Hill v. City National (183 there (2), and authorities 662), 427 428 SE Ga. 468 Co., cited. See Petretes v. Atlanta Loan &c. also 510). SE good As for demurrer of this defendant was given (b) contract, reason in above as cause in sounding to the seeking demurrer amendment and as the strike the adding tort of it sustained, should have been conspiracy follows against City stated cause of no action National The Bank of the petition to it have been dis- Rome, should missed. in not doing trial court so. errеd
The next question presented is whether de murrers of the Bros. Company Brittain Citizens and Southern Bank, simply based assertion amended set forth no cause of against action were them, properly by the court. overruled trial recognize We that it not requirements is difficult under our petitioner pleading charge for a conspiracy a in a civil case. However, mere general charge conspiracy is insufficient to state a cause conspiracy coupled of аction unless the with be tort. It essential that there a wrong upon is which the conspirators damage of another the conspiracy acted language to be actionable. added here amendment, general terms, asserting conspiracy quite similar in the National Bank Evans, found case of Savannah v. (2), (99 good 123), special Ga. 67 SE which was held demurrer. The approval Evans case was cited and followed Young 44). v. Wilson, 183 Ga. Yet in both Young present Evans cases there were suffi- a tоrt. In general allegation cient to show case we have the we conspiracy, alleged. but do tort have essential action alleged, “If otherwise cause al- addition of legations concerning one conspiracy will make .” (116 SE2d (4), Robinson,
Cook
for a
liability
civil
sought
impose
conspiracy,
“Where
gist
of action. The
no cause
furnishes
conspiracy of itself
alleged,
exists,
not the conspiracy
cause
of action
action,
*6
resulting
plaintiff
against
and
the tоrt committed
but
Alverson,
App. 308, 310
v.
damage.” Vandhitch
App. 361
v.
2 Ga.
(183
105).
Hughes,
Also see
SE
Woodruff
(173
707);
Barlow,
SE
Bentley v.
“15. Petitioner’s bid on made a Bank had Citizens and Southern of amount Building’ the ‘Firestone property known as trans- accepted been but had $140,000.00, and bid added.) (Emphasis action had been closed.” agent and employee “16. petitioner Your shows immediately your Mrs. Sarah Wright, petitioner, informed Company, Bros. President Brittain Maddox, Mr. T. told W. City The National Bank President of and Executive Vice day Company, on the 29th Rome, the of Brittain Bros. agent Bank Southern National that The Citizens and June, your peti- prospect petitioner client your was a expect tioner commission when if the sale of to The Southern National property was made Citizens City agent, Rome, Bank The National Bank *7 added.) Company, (Emphasis Brittain Bros. seller.” Company, Bros. Brittain respect the defendant With to logically the which lead portions damaging the of that petitioner the plаintiff to are to inferences unfavorable properties June concerning said until the of nothing “heard time, agent the same petitioner’s that the learned at 29, 1959”; Na that The Citizens and Southern 1959, that say to June is the bid had property made a on the and Bank bid tional had closed; the sale transaction had not been been but accepted, 1959, petitioner’s June, the day, that on the 29th of same The Company Brittain Bros. that agent and told informed prospect peti National Bank of and Southern was Citizens tioner. allegata the “informed told.” The key
The words in and knowledge “inform” . . word defined communicate as, tell; make to; instruct; acquainted; acquaint; advise; enlighten emphasizes notify; inform, . . . the term, knowledge or whatever the actual of of imparting facts Dictionary, sort . .” Webster’s New International Sec- past parti- authority “told,” ond Edition. The same defines the ciple make'known; inform; “to “tell,” disclose, divulge; of as, or to. .” report communicate drawn the datа the from to be conclusion, inference, learned, for plaintiff
that it not June that 29, 1959, was until Bank first that The Southern National the time: Citizens and had that the bid purchase property; had bid tendered a acceptance been time he learned of the accepted; that, at formally; bid, accomplished title not been transfer had told day, initially that, same informed Na- Brittain that and Southern Company Bros. Citizens tional of his. prospect Bank was a (Brittain Company),
As to this inference defendant Bros. given that notice entering the initial was after into before the transfer fatal sales contract but formal deed is rights to the petitioner. “Since the seller liabilities purchaser date are to of the contract determined closing of sale of delivery rather date than the deed sale, of the the fact of the seller had actual plaintiff’s procuring purchaser efforts in at the time of the not delivery deed is determinative issue.” of this Palmer (4) (104 Malone, pro- was curing the efficient not nature of cause, cause, do alter fatal the petition in face of infer- decision cited petition. ences by the revealed
The mere placed fact in the property broker hands of a prevent the owner selling sell does it. from 4-213. Code § Here the placed property exclusively hands of plaintiff.
We consider the now demurrer of The Citizens and Southern Bank. It particularly to be noted *8 the effect the plaintiff’s of dated June 1, letter to The Citizens Southern National Bank and was to serv offer his the prospective ices to any purchase bank in property. of the bank, The reply of the dated June was and noncommittal acceptance contained of the plain no offered services the of petition the tiff, charges that nothing the ren the dered to any defendant services Citizens Na and Southern that short, tional Bank. In all happened agent was that the the voluntarily forwarded information to bank that prop these bank, The for sale. without availing erties were itself the of its submitted agent, directly proffered plaintiff’s services of accepted. own bid which was seller, to obligation recognize that is must law there We buyer accept the volunteered upon the to part prospective of a under property. Here, to the sale of agent looking services of an were not petition allegations of services tendered accepted. commission, paid by to be seller any, if The (a) agreed otherwise division held in upon, and, unless buyer the seller not liable. The defendant did not w'as above, to commission, contract to pay admits this be the case. peti- respect contract, based
With to against the defendant state of action tion does not a cause Bank. The Southern National Citizens and to that It remains be demonstrated this case general allegations amendment conspiracy of the as added allege for are not sufficient a cause of action against tort the defendants Brittain conspiracy based on a Bros. The Co. and and Southern National Bank. Citizens portion the petition as amended these asserts general allegations states Petitioner that: “28. that shows said The Citizens Southern National Bank, Rome, City Bank of Brittain Bros. Company, by through proper agents, its officers and full your petitioner was the procuring cause efficient purchaser the ‘Firestone Property,’ did frаudulently conspire petitioner’s wrongfully among your themselves defeat right your petitioner’s prop- commission for the said erty, (Emphasis thereby added.) themselves.” enriching question
Concisely allegation stated, whether conspired petitioner’s right defeat the defendants com- (which mission estate general allega- on a sale of real is the conspiracy) supported tion tort, of a combination damage petitioner. of which caused tort, there one, must be found in the conspired words the knowledge . petitioner “with full efficient purchaser” cause of the procuring the property. Or- seem that dinarily, language, *9 508 Further, tort. it is sufficient to show a
demurrer, be goes plead- to principle general demurrer whole basic part it ing any which is addressed and should overruled if pleading good Bailey substance. v. 208 Ga. Bell, (69 272). principle Bailey 715 SE2d of the case However, the applicable simple general here al- that the reason legation negated specific allegations of the tort (a) above, have which, (b) held in 2 we divisions and 2 subject are reasonable inference de- that neither Brittain Bros. fendants, Company or The Citizens and Southern liable Bank, pay to the commissions the sale. on dif- allegations subject equivocal,
“Where or doubtful, strongly ferent most they will be construed interpretations, (49 Chester, v. 204 Ga. SE2d pleader.” 307 Hoffman 760). on More assertion must de- specifically, yield, murrer, particular to the more statement of the transaction, plеader. taken be that most version will to the unfavorable Independent App. (1), &c. Ins. Pantone, Co. v. Ga. 80 426 Life 153). (56 yield 429 must demurrer SE2d General on particular facts shown where from the nec- inferences facts to be drawn are essarily contradictory alleged to conclusions v. petition. R., Luck Western &c. App. (4), Ga. 204 197 (36 alleges be- 59). pleader conspiracy SE2d Where persons up preliminary tween two existed sets facts established, pleader relationship which claims allegation the general mere conclusion unless conspiracy is a relationship, where preliminary establish facts support fact the ultimate preliminary relied do facts sustained. properly a demurrer is Walraven conclusion, 148). (47 v. con- Walraven, App. Mere 713, 717 SE2d alleged, facts and a conclusion must nothing clusions add yield, particular inferences shown if demurrer, facts Rich’s, contradict the conclusions. v. therefrom Wilkinson 552). Special App. Ga. SE2d facts Inc., pleaded vary by сonclusions Wright must Contracting control. Waller Co., general averment specific pleaded contradict facts plaintiff’s position in
to the defendants’ necessarily follows cited, transaction. From the authorities entirety in its specific allegations that the control. *10 Brittain against not state of action cause does a Bank. or Southern National Company Bros. The Citizens and stated holding that cause of action In view no upon the other pass it unnecessary petition, becomes assignments of error. J., and
Judgment Carlisle, P. Frankum, reversed. Jordan Hall, J., Felton, J., J., concur. C. P. JJ., Nichols, Russell, J., disqualified. dissent. Eberhardt, I part part. concurring in in dissenting Judge,
Hall, rulings dissent judgment 1, concur in in Division 2. from the Division rulings judgment in in majority’s I differ with construction of the respects: allegations view, these The which, majority plaintiff procured show that the seller learned that (Pars. 15, purchaser a after contract of was entered into- sale 16) allegations that on certain learned simply plaintiff a date that The & made bid Southern National Bank a Citizens had plain- accepted whereupon and Brittain Bros. Company it, had i.e., Company tiff took action, certain Brittain Bros. informed that allegations plain- he commission. The that the claimed his tiff Company Brittain Bros. that The & informed Citizens Southern client claimed National Bank and that he was his (Par. 16) his commission do that say Brittain Bros. through purchaser some Company know, did already or source, other procured The & had Citizens Southern Bank. a The Company plain- whole show Brittain Bros. pay offered to a purchaser tiff finding commission for who consummated plaintiff procured purchase; Citizens Southern Na- & tional Bank a purchaser, and a Citizens & Southern National Bank was consummated; that Brittain Bros. Company attempted Citizens & Southern National Bank from the plaintiff; plain- conceal sale transaction that the tiff informed both defendants claim but his to his commission the defend- pay him;
they closed
sale and refused to
conspired
deprive plaintiff of
commission
his
fеndants
re-
n full
purchaser.
With
procured
that he had
procured
aware that the
gard to when the seller became
alleged.
purchaser,
time is
no
Peoples
Corp.,
Bishop v.
Loan &c.
pleading conspiracy,
As
far
the con-
held: “So
161),
than
required
spiracy
concerned,
specification
is
further
pleaded
terms
it
declara-
in which
(Emphasis supplied.)
tion .
.
.”
even
This
true
special
Evans,
demurrer. National Bank
Savannah
difficulty
recognizes
“The
Ga. 67
intrinsic
law
great lati-
.
. The rulе
proving
conspiracy.
allow
particular
complaint
tude in
in the
act
setting out
is to
show con-
be inferred.
conspiracy
To
express compact
agree-
prove
an
spiracy
necessary
is not
or
*11
ment
thereto. The
element of
among
parties
essential
appear
charge
design;
the common
but it
not
that
is
need
either
parties
together
formally
informally
met
entered
or
that
explicit
agreement; nor
it essential
any
into
or formal
apрear
writing they
that
or
formulated
should
either
words
objects.
persons
that
their unlawful
It
sufficient
two more
or
in any manner
or
come
un-
positively
tacitly
either
to a mutual
derstanding
they
accomplish
design.”
that
will
the unlawful
742).
Robinson,
(5) (116
Cook v.
511 tion . . test must be construed as a whole . and final of the against a demurrer sufficiency of a whether the escape defendant alleged can admit all liability.” (37 Frazier v. Southern Ga. 597 Co., 200 Ry. 590, 774). addition, construing plaintiffs SE2d In rule petition mоst “. . . strongly him on demurrer should perverted not be by unwarranted and strained construction.” Neal v. Stapleton, (46 Ga. Toler v. 236, 130); 245 SE2d Goodin, (37 609); Cigar 200 Ga. SE2d New Co. v. Broken Spur, (119 133). Inc., App. “. SE2d a strained given and unnatural construction not be [plead- will ings] in order pleader.” raise inference against an Na- tional Fire Ins. Co. v. Banister, App. 104 Ga. 46).
SE2d It that the al- present petition, whole, is clear construed leges that the plaintiff entitled to a commission, selling him, conceal from buying tried to with knowledge that plaintiff was entitled to a commission conspired right. to defeat his
Decisions particular should on of the case and the merits procedural “Appellate niceties. courts should strive encourage eliminate, unnecessary technicalities serving useful purpose, justice.” but which tend divert or nullify Corp. General Titus, Accident Fire &c. our Today pleading implemented by rules
pre-trial discovery judgment summary to disclose, many cases, true the action, nature narrow the trial to real issues, permit controverted either a or a de fendаnt to have relatively judgment, in short there time, where *12 fide, cause is no bona of action or defense. Reynolds See v. Reynolds, (123 217 Ga. 115); Super SE2d Setzers Higgins, Stores v. (121 305). 104 Ga. 116, 120 SE2d These procedures designed make unnecessary supplant and the ancient strict purpose of the pleading, rules of was to as which the opposing party might sure adequate have the notice of nature the of he claim must defend. opinion
In my of are sufficient to knowledge cover by seller plaintiff’s rights of a con- before de- general not on I would into, and
tract was entered of constitutional and historic deprive plaintiff of his murrer wished had on issue. If right trial jury to a such that there in fact no to contend was they could very material issue genuine fact, there on this no- was pre- more any themselves or one easily have availed plaintiff forced the procedures above, trial mentioned point or evidence on this immediately come forward his subjected summary judgment. else to аn adverse be the ancient themselves of have availed The defendants have might they demurrer) (special device pleading claimed the plaintiff the time notice specific more obtained upon right. “When called of plaintiff’s the seller first knew fact, un- traversable every demurrer, date of special do so be shown, should contrary reason some sufficient less 730).” (49 Allen v. SE v. 122 Ga. Powell, stated. Warren (89 821). (Emphasis supplied.) Gates, (5) 145 Ga. aby specific time cannot raised questiоn of However, Atlas Moon v. motion to dismiss. general byor an oral demurrer 462). (2) Co., App. 260 SE2d Finance Ga. Auto conspiracy petition considering Here we are demurrer, special Even if defendants had filed demurrer. special demurrer, have met such possibly could al- time with an he fact did not know the conspiracy, but well legation that unknown time was App. 107 Wright Lester, v. known to defendants. Wright case a suit for alienation sought alleged the time were and dates as to affections wife the mаle defendant. plaintiff’s rendezvous between type conspiracies peculiar due to are, Activities of their publication notice nature, presumably consummated without or injured party public. or ago Judge years Lumpkin Over one hundred stated Legislature “. . . courts have lay and the combined to . . .” the pleading, axe to technicalities of common-law “. joint Upas tree and under their of fiction blows this folly Tuggle fall.” Wilkinson, must 90. sprout the majority is, view my opinion, a new stump. old
513 judgment Brittain аs to reasons, would affirm the For these I Bank, Southern National & Company and Citizens Bros. Rome. Bank of City reverse to the National as in the matter dealt opinion concerning express I dissent. Judge additional Felton's J.,P. Felton, J., Nichols, that C. say
I authorized to am dissent. in this concur the rul- part. in I concur in dissenting Judge, Chief
Felton, Bank of Rome. City the judgment National ings and two judgment to the other rulings the dissent from I defendants. Judge I consider it to the Hall as in dissent of
I concur that one to wit: grounded proposition onе alone, on the the does proper construction the the owner did not know property face that show its property the the sale of procuring cause of the was sale. owner entered contract of until -after had into judgment rulings as to Brit- majority I from dissent Bank & Bros. and The Citizens Southern Company tain which ma- premise reason. basic for an additional where an owner listed has jority rely all cases that, with- right property to sell the the owner has property sale, for for obligation broker a commission pay an having out he binds at time owner has the sale unless procuring the broker property to sell was himself put upon inquiry him cause of the or of facts which v. No. 2 in case Palmer matter. Headnote as to such cannot majority, App. 666, supra, cited Malone, under circum- State all be taken to be law true who without knowl- owner, The true is that sells stances. rule not be bound for edge procured purchaser, will a broker price he than that at sеlls at a less broker commission at listed. rule is otherwise if owner sells which was Palmer broker. In the v. Malone listed with price the 4th Head- statement of case, shown facts supra, than that at $5,000 property less sold note, owner Ins. reading case of State listed. A which it Life 474) App. will Ga. 646 Whitehurst, Co. v. 67 Hines, v. show what true rule as do cases of Tidwell App. Ga. 48); Mobley Tinsley, SE (1) (120 437); Sandlin, Indiana Fruit Co. v. *14 rule of rationale of law fixed property price that where sell at a a broker failed to has price at lеss owner, property owner sells price listed, than he is entitled notice as to whether may determining broker claim for have a commission price he property. at which will sell the the cases Under cited, price above if the owner at the listed property sells the broker, with procuring owner liable to broker sale whether owner knew of the interest at the time broker’s making the sale or reason that the been not, owner has protected regard with commission beсause the commission the sale price. included in In the property instant case, the not was listed with the to be at any price. brokers sold certain The contract brokers was that they prospective obtain purchasers who make would an offer for the property seller. principle The same heretofore apply referred to would price this case if the at property which the was included sold the agreed broker’s commission it not would make dif- any whether ference at the owner knew the time it bound itself sell the property whether procuring cause of the sale. price If not did include commis- broker’s sion and there was no fraud in not its being included, and not the owner know did procured the sale before became sell, bound to I do think that the plaintiff recover. entitled to The basis of this dissent proposition of above, plus law stated the fact that it does not affirmatively appear in the price contract property include did the broker’s commission.