374 S.E.2d 537 | Ga. Ct. App. | 1988
On April 30, 1985, Rev. Wilhite, the pastor of Calvary Baptist Church, signed an exclusive listing agreement with Kennon Realty
Stacey Realty filed suit against the church and later filed a motion for summary judgment. The appellee filed a cross-motion and mainly asserted that the lack of a property description rendered the contract null and void. This appeal follows from the ruling of the court below which granted appellee’s motion and denied appellant’s.
1. Appellant contends that Rev. Wilhite’s failure to read the contract precluded him from raising the defenses of fraud and mutual mistake.
Where one signs a contract without reading it, he is bound by its terms unless he can show that an emergency existed at the time that he signed it that would excuse his failure to read it, or the other party misled him by artifice or device to prevent him from reading it, or a fiduciary or confidential relationship existed upon which he relied in not reading the contract. Van Den Berg v. Northside Realty Assoc., 172 Ga. App. 591 (323 SE2d 839) (1984). Rev. Wilhite has not shown the existence of an emergency that would excuse his failure to read the contract. He cannot set up a defense of fraud where he had the capacity and opportunity to read the contract. Craft v. Drake, 244
Appellee’s argument that a fiduciary relationship existed between the parties and that appellant violated that relationship by inducing appellee to sign the contract is without merit. “A confidential relationship does not exist prior to the contract or legal relationship creating it, unless it exists for other reasons.” Cole v. Cates, 113 Ga. App. 540, 544 (149 SE2d 165) (1966). The only evidence of a prior fiduciary relationship between the parties was a listing of the property with Kennon Realtors which expired on September 1, 1985.
2. This case is not governed by the statute of frauds as asserted by appellee. An exclusive listing agreement is not within the statute of frauds. Orr v. Smith, 102 Ga. App. 40 (115 SE2d 601) (1960). It is a contract for services and not for the sale of lands. Cantrell v. Johnston, 74 Ga. App. 74, 78 (38 SE2d 893) (1946); Lingo v. Blair, 32 Ga. App. 111 (122 SE 802) (1924). The rules of the Georgia Real Estate Commission do not determine whether a listing agreement (which it requires to be in writing) is within the statute of frauds. See generally National Advertising Co. v. Dept. of Transp., 149 Ga. App. 334, 339 (254 SE2d 571) (1979); Mousetrap of Atlanta v. Blackmon, 129 Ga. App. 805, 807 (201 SE2d 330) (1973); Fulton County v. Holland, 71 Ga. App. 455, 461 (31 SE2d 202) (1944). “[A] regulatory agency has no constitutional right to legislate [Cit.] and the collateral construction given statutes by administrative officials will be disregarded where their invalidity is apparent. [Cits.]” Brown v. Quality Fin. Co., 112 Ga. App. 369, 370 (145 SE2d 99) (1965).
Accordingly, we find that the trial court erred in granting summary judgment in favor of appellee.
Judgment reversed.