Pfarner v. Poston Realty & Insurance Agency, Inc., 40500

40500 | Ga. Ct. App. | Jan 27, 1964

Pannell, Judge.

1. A real estate agency contract granting to the agent the exclusive right and authority to sell the property described in the contract and in which contract the owner agrees to pay commissions whether such sale be made by an agent or the owner or by any other person acting for the owner in the owner’s behalf, entitles the agent to his commissions, even though the property is sold by the owner to a purchaser not procured by the agent where the agent performs his portion of the contract as agreed upon, that is, “to list and endeavor to sell the property” described in the contract. Dobbs v. Conyers, 36 Ga. App. 511" court="Ga. Ct. App." date_filed="1927-02-28" href="https://app.midpage.ai/document/dobbs-v-conyers-5618408?utm_source=webapp" opinion_id="5618408">36 Ga. App. 511 (1, 2, 3) (137 S.E. 298" court="Ga. Ct. App." date_filed="1927-02-28" href="https://app.midpage.ai/document/dobbs-v-conyers-5618408?utm_source=webapp" opinion_id="5618408">137 SE 298). The present case is distinguishable from those cases wherein there is no agreement to pay commissions upon sales made by the owner even though there may be an exclusive listing. Garfunkel v. Byck, 28 Ga. App. 651" court="Ga. Ct. App." date_filed="1922-06-13" href="https://app.midpage.ai/document/garfunkel-v-byck-5614316?utm_source=webapp" opinion_id="5614316">28 Ga. App. 651 (113 S.E. 95" court="Ga. Ct. App." date_filed="1922-07-24" href="https://app.midpage.ai/document/stephens-v-fulford-5614434?utm_source=webapp" opinion_id="5614434">113 SE 95); Irish v. Fisher, 74 Ga. App. 631" court="Ga. Ct. App." date_filed="1946-11-26" href="https://app.midpage.ai/document/irish-v-fisher-3404917?utm_source=webapp" opinion_id="3404917">74 Ga. App. 631 (40 SE2d 588); Bradbury v. Morrison, 93 Ga. App. 704" court="Ga. Ct. App." date_filed="1956-04-04" href="https://app.midpage.ai/document/bradbury-v-morrison-1295471?utm_source=webapp" opinion_id="1295471">93 Ga. App. 704 (92 SE2d 607); Moore v. May, 10 Ga. App. 198" court="Ga. Ct. App." date_filed="1911-12-19" href="https://app.midpage.ai/document/moore-v-may-5605338?utm_source=webapp" opinion_id="5605338">10 Ga. App. 198 (73 SE 29). The present case is also distinguishable from Cole v. Pursley, 86 Ga. App. 452" court="Ga. Ct. App." date_filed="1952-07-03" href="https://app.midpage.ai/document/cole-v-pursley-1262976?utm_source=webapp" opinion_id="1262976">86 Ga. App. 452 (71 SE2d 575), for the reason that while in that case there was an agreement to pay commissions upon a sale made by the owner, under certain conditions, the facts show that these conditions were not met, and the agreement to pay commissions did not apply under the particular circumstances.

Decided January 27, 1964. Vernon W. Duncan, for plaintiff in error. Reed, Ingram, Flournoy & Custer, Robert E. Flournoy, Jr., contra.

2. It not affirmatively appearing that the property described in the copy of the deed attached to the petition as Exhibit “A” and the agency contract attached to the petition as Exhibit “B” was not the same property, but on the contrary it being alleged that it was the same property, the petition did not fail to set forth a cause of action on the ground that the property involved was not sufficiently described or identified. Orr v. Smith, 102 Ga. App. 40, 43 (115 SE2d 601).

3. The trial court did not err in overruling the general demurrer to the petition.

Judgment affirmed,

Felton, C. J., and Frankum, J., concur.