28 S.E.2d 319 | Ga. Ct. App. | 1943
Lead Opinion
1. The court erred in overruling the demurrer to count 1 of the petition wherein the plaintiff, a real-estate broker, sought to recover a commission on a sale made by the owner to a purchaser of its own procuring, after the execution of an exclusive sales-agency contract for the consideration expressed of plaintiff's agreement "to list and endeavor to sell" the property therein described.
2. The court did not err in overruling the demurrer to count 2 of the petition which sought to recover commission allegedly due a real-estate broker by reason of his having, while the property was placed with him for sale, produced a customer ready, able, and willing to buy, and who actually offered to buy the property on the terms stipulated by the owner, but whose offer was declined by the owner, who sold the property two days later to a purchaser of its own procuring.
Count two of the petition, as amended, alleged in substance that on August 15, 1942, during the period covered by the sales-agency contract, the plaintiff submitted to defendant a signed sales-agreement *270 executed by Bay Shore Builders Inc., for the purchase of the property for the sum of $31,250, which was submitted to defendant's attorney's who marked same "approved as to form only," and that defendant failed and refused to carry out the sales-agreement and declined to accept the sales contract of the Bay Shore Builders Inc., but sold the property to the Chatham Realty Company for $31,250 by warranty deed dated August 17, 1942; that plaintiff fully performed all duties imposed on him by said sales-agency contract and fully carried out his agreement; that he secured a buyer who was ready, able, and willing to buy, and who actually offered to buy the property on the terms stipulated by the owner, but the defendant chose to sell to the Chatham Realty Company after plaintiff had complied in full with the terms of said sales-agency contract.
The defendant demurred to each count of the petition and to the petition as a whole on the ground that no cause of action was set forth. The judge overruled the demurrer, and the exception here is to that judgment.
In count one of the petition as amended the plaintiff contended that the defendant was indebted to him for specified commissions on the sale of certain property which the defendant sold to a third party after executing an exclusive sales-agency contract to the plaintiff, and after the plaintiff had listed the property for sale and placed a sign thereon that it was for sale by him, and after he had devoted much of his and his employee's time to securing a purchaser. The plaintiff did not sue to recover damages for breach of contract as in the case of Hill
v. Horsley,
In count two as amended the plaintiff alleged that on August 15, 1942, while said property was listed with him under the exclusive sales-agency contract entered into with the defendant on October 22, 1940, he submitted to the defendant a sales-agreement executed by Bay Shore Builders Inc., agreeing to purchase the property for $31,250 to be paid in cash, which agreement was marked "approved in form only" by the defendant's attorneys, and that the defendant failed and refused to comply with said agreement *272
and sell the property to Bay Shore Builders Inc., but sold the property to Chatham Realty Company for $31,250 by warranty deed dated August 17, 1942; that the plaintiff fully performed all duties imposed on him by the contract and secured a buyer who was ready, able, and willing to buy and who actually offered to buy the property on the terms stipulated by the defendant, but that the defendant, instead of complying with his agreement with the plaintiff, chose to sell the property two days later to the Chatham Realty Company instead of to the purchaser produced by the plaintiff. "The fact that property is placed in the hands of a broker to sell shall not prevent the owner from selling, unless otherwise agreed. The broker's commissions are earned when, during the agency, he 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. "The general rule, in the absence of a different agreement, is that a real-estate broker in whose hands property is placed for sale earns his commissions when, during the agency, he finds a purchaser ready, willing, and able to buy, and who offers to buy on the terms stipulated by the owner."Smith v. Tatum,
Whether the plaintiff produced a purchaser during the term of the agency was an issue of fact to be determined on the trial. The contract of agency provided that it was for a term of three months from date, and a provision therein provided that it was to be automatically renewed every three months for an additional three-months term unless written notice was given to the plaintiff of defendant's intention to withdraw the property from sale. Under the allegations of count two, the contract would not have terminated until three months after the notice of July 18, 1942, which would have been October 22, 1942. Under the allegations of the petition as amended, the court did not err in overruling the general demurrer to count two of the petition.
Judgment reversed as to the ruling on the demurrer to countone of the petition, and affirmed as to the ruling on thedemurrer to count two thereof. Stephens, P. J., concurs.
Concurrence Opinion
I am of the opinion that each count set out a cause of action. *273