The trial court granted summary judgment against Rucker, who sought to recover a real estate commission under an exclusive listing agreement with Corbin. Rucker alleged that he obtained a buyer ready, willing and able to purchase Corbin’s property but that Corbin refused to consummate the sale.
The exclusive listing agreement described the property to be sold as 120 acres ±, specified a price of $3,500 per acre and stated that the terms of sale were “negotiable.” The termination date of the listing agreement was May 3,1986. On May 2, Rucker brought Corbin a contract offer from Anderson which was for $3,500 per acre and provided for a closing date of July 10. Corbin objected to two provisions in the proposal. The first read: “Exact acreage to be determined by current survey which is to be provided by Purchaser at time of closing. In no event shall total purchase price be less than $420,000 [120 acres at $3,500 per acre].” The other stipulated: “The rights of Purchaser hereunder may be assigned without the consent of Seller.” Corbin contends that Anderson was not financially able to purchase the property at the time of the offer and that coupling the right to assign the contract with the closing date past the termination date of the listing agreement converted the so-called purchase offer into an option to purchase on or before July 10.
A broker’s commission is earned when he finds a “purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner.” OCGA § 10-6-32. “Able” means financially able.
Howell Realty Co. v. Boggs,
In
Weldon v. Lashley,
Although not containing the concluding language of the Weldon offer, the clear intendment of this offer provision is that the parties would be bound by the survey. It does provide a safety net with a minimum price of $420,000, but the stipulation that it be furnished “at time of closing” results in leaving the owner without recourse to contest the accuracy of the survey, absent fraud or a showing of incompetence on the surveyor’s part. He was not required to agree to make a last minute decision on whether there was a basis to contest the survey.
“Negotiable” as used in the listing agreement must mean simply that the owner could reasonably bargain with regard to various terms and conditions contained in the offer, accepting or declining as best suited his interests. See
Batchelor v. Tucker,
As to the stipulation regarding assignability, Rucker argues that under the relevant authority Corbin had no right to refuse to permit the assignment of the contract since this was a cash sale. In this he misconstrues the case authority. After the purchase money is tendered, the owner may not prevent the purchaser from assigning the rights to another even though there was a provision in the sales con
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tract against assignability. However, until full payment is tendered such provision is enforceable and the seller may rely upon it.
Cowart v. Singletary,
Rucker had to produce a prospective purchaser ready, able and willing to buy on the terms stipulated by Corbin. The two terms, objected to, which were included in the offer constituted variances which served to prevent Rucker from recovering a commission.
Bentley Group v. Paces Ferry Anesthesiology Assoc.,
Judgment affirmed.