On June 23, 1983, the appellant, Sawgrass Builders, Inc., entered into contracts to purchase two separately owned tracts of land, with the appellee realtor as co-broker. Both sales contracts specified a real estate broker’s commission of seven percent of the purchase price. At the closing of the sales on September 1, 1983, however, it was discovered that the closing statements provided for a broker’s commission of only five percent. At that time, the appellant uttered an additional check for $2915, which represented the appellee’s share of the additional two percent commission omitted from the closing statements. Later that day the appellant stopped payment on the check.
On September 20, 1983, the appellee demanded payment of the $2915 plus a five percent service charge, but the appellant refused, and subsequently the appellee commenced this action seeking the commission due and attorney fees. The appellant admitted utterance of the check, but, in its verified answer, alleged fraud and/or mistake in its issuance. The trial court granted summary judgment and attorney fees of $745.50 for the appellee, from which this appeal followed. Held:
1. “A check, executed and delivered, is a contract in writing by which the drawer contracts with the payee that the bank will pay to the payee therein the amount designated on presentation.”
Bailey v. Polote,
The appellant contends that he did establish a defense of fraud in the inducement and/or mistake, sufficient to withstand the appellee’s motion for summary judgment. As proof of either defense, it emphasizes the two percent commission discrepancy in the closing statements and the actual sales contracts, and the variance between the sales contracts regarding the liability for broker’s commissions. (On one contract, which was a standard form furnished by the appellee, the provision for the seller to be responsible for such commissions was changed to relegate that responsibility to the appellant, but the other standard contract was unaltered.) We, however, find none of these discrepancies sufficient to create any genuine issue of fact.
Regardless of the different commission percentages indicated on the sales contracts and the closing statements, as well as the contract provisions identifying the party responsible for the broker’s commission, it is uncontroverted that the appellee insisted at the closing that the appellant was responsible for the commissions, which were set at seven percent of the purchase prices; likewise, it is clear that even if the appellant harbored some belief that the commission negotiated had been only five percent, it nevertheless had agreed at the closing to pay the entire seven percent figure for both sales. In short, where the evidence showed only that the appellant agreed to the terms demanded by the appellee at the time of closing, notwithstanding the possible different terms originally negotiated between the parties, the appellant established no acceptable defense of mistake.
Similarly, the appellant’s verified answer stated no defense of fraud. “[Ajbsent special circumstances ... [a party] . . . may attack a contract in a court of law on grounds of fraud only where they have exercised due diligence in protecting themselves, instead of merely relying blindly upon respresentations of another later claimed to have been false.”
Walsh v. Campbell,
2. OCGA § 13-6-11 provides that the expenses of litigation may
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be allowed “where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense . . Where no defense exists, as in this case, forcing a plaintiff to resort to the courts in order to collect is plainly causing him “unnecessary trouble and expense.”
Brannon Enterprises v. Deaton,
Judgment affirmed.