15 Ga. App. 254 | Ga. Ct. App. | 1914
The action was brought by Moore, a real-estate dealer, to recover $1,275 commissions from Mrs. Swift. The suit was based on (1) express contract, (2) quantum meruit for value of services rendered, and (3) on a custom prevailing in the city of Atlanta, under which, in the absence of a contract, a real-estate dealer receives 5 per cent, on the first $2,000, and 2% per cent, on the balance. There was attached to the' petition a copy of the contract with Corey, Blount & Co., the proposed purchasers of Mrs.
In view of the fact that the execution of the contract was admitted by the defendant, and it was not alleged in the answer that the defendant had declined to sell the lot because of any lack of authority on Corey’s part to sign the contract in behalf of Corey, Blount & Co., the court did not err in admitting the contract. Construed with the letter of Mr. Hopkins, the contract and the letter were unambiguous, as the court correctly held; and for this reason the court properly excluded parol evidence as to prior negotiations between the parties which led up to and culminated in the contract. No rule of law is better settled than that which declares that parol evidence is inadmissible to contradict or vary the terms of a written instrument. Of course, as is insisted by counsel for the plaintiff in error, parol evidence is sometimes admissible to show the understanding and intention of the parties in entering into
The plaintiff in error complains that, due to misrepresentations of one Wood, who appears to have been employed by the plaintiff upon a commission basis, the trade fell through, and that this was due to the fact that Wood represented to Corey, Blount & Co. that the 10-foot alley was to run in a southwest direction, from the rear of the lot, to Peachtree street. All of Corey’s answers to the interrogatories, upon this point, were excluded by the court upon the plaintiff’s objection, and we think they were correctly excluded, be
The defendant offered an amendment to her answer, setting up that the contract declared upon in the petition, and the letter of Mr. Hopkins made a part thereof, were ambiguous, because they did not definitely locate the alley, and that the location of the alley was an important and material element in the consideration of the trade, upon the part of Corey, Blount & Co.; and it was further alleged in the proposed amendment that Wood, without the defendant’s knowledge or- consent, represented that the alley was to divide the 70-foot lot in question from the property of the Mitchell-Lewis garage, and that the alley would begin on Peachtree street; that she had never had enough property there to sell a 70-foot lot and create a 10-foot alley at that point; and that, as there had been no meeting of minds between her and Corey, Blount & Co. as to the property, there was no legal contract and neither party was bound thereby; and that whether the contract and the letter of her attorney to Wood were ambiguous or not, there was a mutual mistake, brought about by the statements of Wood, unauthorized by her and not known to her, and that for this reason there never was any binding or enforceable contract between her and Corey, Blount & Co., and that the transaction was only “declared off” when it was ascertained in good faith that no contract had ever been consummated. The defendant offered this amendment in defense of any liability either to Wood or the plaintiff. The court refused to allow the amendment, although the defendant’s counsel stated that, in connection with the amendment, he desired
We are of the opinion that the contract and the letter, in the absence of any attack on the ground of fraud used in procuring them, necessarily excluded the amendment, and that' it was properly rejected by the court. The allegations of the amendment could not have been established except by parol proof and in violation of the principle that all the antecedent negotiations between the parties are presumed to have been merged in and concluded by a written contract freely entered into.
• A letter was tendered by the defendant, written by D. W. Corey to J. L. Hopkins & Sons, in which Corey stated that his understanding was that the alley was to commence on Peachtree street, and that Wood had stated to him that this was the case, and that it was only after the papers had been signed that it developed that the Peachtree frontage was only 70 feet, after taking off 50 feet for the garage. The letter contains several propositions for resale which Corey had in mind, and concludes with a statement that Wood had offered him the property a number of times and had always stated that the entire property consisted' of 130 feet (frontage). We think the court properly sustained the objection to the effect that this letter was a self-serving declaration, and its contents immaterial and irrelevant, as well as the controlling objection that the facts set up in the letter could not be proved by the introduction of the letter, but that any proof as to the matters therein stated would have to come from the sworn testimony of Corey as a witness.
The court declined to allow the defendant to prove by the tax-collector of Fulton county that the name of Corey, Blount & Co. did not appear in the returns on the tax digest of Fulton county for the years of 1911 and 1912. Counsel for the defendant stated that the purpose of the question was to show that Corey, Blount & Co. returned no property for taxation, and thus throw light on the question as to whether Corey, Blount & Co. were able to comply with their contract. The fact that Corey > Blount & Co> did not return any property for taxation might have been relevant as corroborative of other testimony, to the effect' that they had nu property and were not able to comply with their contract attached to the
There' was no error in sustaining the motion to exclude a part
Upon the conclusion of the evidence the court directed a verdict for the plaintiff for $1,275 as principal, and $228.01 interest to date, and exception is taken to the direction of the verdict. This court has always borne in mind-that the section of the code which permits the court to direct a verdict had its origin in rulings of the Supreme Court in which the direction of a verdict is assumed, prima facie, to be error, but must be held to be harmless error where the jury could not lawfully have found any other verdict than that which was returned. The present case fits the old rule: “The better practice is to let the jury retire, and not to direct a verdict; but if the case be perfectly clear on the facts, the plaintiff in error is not hurt, and the case will not be sent back, because it could not change the verdict.” Hobby v. Alford, 73 Ga. 791 (4). See Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209).
The defendant having admitted the execution of the contract as pleaded, she was bound to pay the plaintiff the stipulated commissions, unless she pleaded and proved a good defense in avoidance of the contract. She could not plead the inability of Corey, Blount & Co. to buy and pay for the lot in question, because the contract
The amendments, for reasons already stated, were properly disallowed;. but from what is developed by the statement of counsel in offering the amendments, and testimony in support thereof, it is clear that the amendments did not present any good defense, and the testimony was not germane to the real issue.
In a suit brought to recover commissions for the sale of real estate there can only be three questions: (1) Was there a contract under which the real-estate dealer was authorized to act for the defendant? (2) Did he perform the service? (3) Has he received his compensation? A fourth question may enter into the case, where it is claimed that the real-estate dealer or agent consented to the abrogation or rescission of the contract; but, as already stated, that question did not enter into this ease, for the plaintiff’s witnesses swore positively that they were not consulted and had no part in the abrogation of the contract, and there is no testimony in conflict with this statement.
. Considerable stress is laid by the learned counsel for the plaintiff in error on the fact that Wood, the actual salesman who brought about the contract, had not registered and paid the tax required of real-estate dealers in accordance with sections 971 and 978 of the Civil Code. Under the rulings of this court in Ford v. Thomason, 11 Ga. App. 359 (75 S. E. 269), and Horsley v. Woodley, 12 Ga. App. 456 (78 S. E. 260), an inquiry as to whether Wood was an
After careful consideration of the various exceptions, and a thorough investigation of the record, we are satisfied that it discloses no error which affords the plaintiff in error ground for complaint.
Judgment affirmed.