139 Ga. 283 | Ga. | 1913
(After stating the foregoing facts.) The general rule as to when a broker has earned his commission is thus stated in the code: “The fact that property is placed in the hands of a broker to sell does 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.” Civil Code, § 3587. The petition alleged, that the broker procured two purchasers who made a written proposition to purchase on terms stated, and this was accepted in writing by the sellers, by whom he was employed; that “there were no duties or obligations devolving upon him other than to secure purchasers read}', willing, and able to buy upon the terms stipulated by the defendants, which petitioner did” (italics ours); and that, under the terms of his contract, his right to a commission was not contingent upon the final consummation of the trade, delivery of the property, or payment of the purchase-money. We might stop1 here and affirm the judgment by merely stating that these allegations, treated as true, are sufficient, under the terms of the section of the code, to withstand a general demurrer. The argument, however, has taken a wider range and gone into the question of the effect of entering into the written contract. It is therefore not amiss to make some additional observations on the subject.
There is no little confusion and conflict among the decisions as to when a real estate broker has earned his commission, the burden of proof, the effect of the making of a written contract between the parties, and other questions. Much of this has arisen from a want of clear and accurate consideration of principles, and following expressions used in some other decision, without keeping in view the facts on which it was based. Without intending to make an exhaustive statement, the following points most frequently arise for consideration in determining whether a real estate broker is entitled to recover from a proposed seller commissions: (1) What was the contract between him and his principal,—was it a general contract that the broker was to sell the property, or procure a purchaser for it; or did the contract contain special terms, such as that commissions were to be paid only on specified contingencies," or at certain times or from certain proceeds, or that the broker was to perform services additional to those implied in the
A broker has been defined by Judge Story to be “an agent employed to make bargains and contracts between other persons, in matters of trade, commerce, or navigation, for a compensation called brokerage.” In the absence of any stipulation to the contrary, the ordinary duty of a real estate broker to sell, or procure a purchaser, is performed when he has done the thing which he was employed to do, that is, has produced a purchaser ready, willing, and able to buy, and who offers to buy on the terms stipulated by the owner. The rule has sometimes been' stated by employing such expressions as that the purchaser must be ready, willing, and able to “complete” or “consummate” the purchase. The real question as to the broker is whether he has fully discharged the duty resting upon him under his employment. If his principal rejects the purchaser or proposal, and the broker sues for his commission, the burden rests on him to show that he has discharged his duty to effect a bargain; and if no bargáin was effected, that it was the fault of his principal, and not his own. To do this involves showing that the proposed purchaser was one with whom the principal should have contracted, and this includes not only readiness and willingness, but ability to do so on the part of the purchaser. In this connection see Alt v. Doscher, 102 N. Y. App. Div. 344, 347 (92 N, Y. Supp. 439).
At this point arises a division in the authorities. Some decisions in England and a few in America hold, that, even, though the principal and the purchaser proposed by the broker enter into a binding executory contract of sale, as where some of the purchase-price is to be paid in installments at future dates, the broker has not earned his commission if the purchaser is not one able to carry out or perform the contract in full. The weight of authority in America is to the effect that the right of a real estate broker does
To fall within the rule above stated, the purchaser produced by the broker and the principal of the latter must come to a final, binding agreement on the terms of the transaction. The making of a mere preliminary or tentative agreement, which is not binding on the parties and which is not carried into effect, does not give the broker a right to commissions. 19 Cyc. 251, and citations; Condict v. Cowdrey, 139 N. Y. 273 (34 N. E. 781); Montgomery v. Knickerbacker, 27 N. Y. App. Div. 117 (50 N. Y. Supp. 128).
In some of the cases there is actual conflict with the rule above stated; in others the language employed must be considered in the light of the facts involved. Thus in McGavock v. Woodlief, 20 How. (U. S.) 221 (15 L. ed. 884), there was no valid, enforceable contract made between the principal and -the purchaser furnished by the broker. In Hyams v. Miller, 71 Ga. 608, it was held' that the contract between the owner of land and the broker was that the broker should not only find a purchaser for the owner’s property, but make an actual sale of it upon- the terms proposed by the owner; and that the carrying by the broker of a certain written proposition from a proposed buyer to the owner and the endorsement thereon by the owner of the word “accepted,” followed by his signature, did not entitle the agent to commissions, where the trade was not completed because the proposed purchaser refused to
In Davis v. Morgan, 96 Ga. 518 (23 S. E. 417), it was held: “Although it was incumbent on the plaintiff to show that he had procured a person ready, willing, and able to purchase on the terms
Judgment affirmed.