Opinion
37860.
DECIDED OCTOBER 21, 1959. REHEARING DENIED NOVEMBER 13, 1959.
Action for commissions. Fulton Civil Court. Before Judge Henson. July 3, 1959.
Edward D. Wheeler, Smith, Field, Doremus Ringel, H. A. Stephens, Jr., Palmer H. Ansley, for plaintiffs in error.
H. L. Bradford, Kyle Yancey, contra.
1. The evidence is sufficient to sustain the verdict of the jury and the judgment of the court based thereon.
2. The charge of the court presented the law applicable to the issues involved in the case at bar.
3. Under the facts of this case the court did not err in admitting evidence as complained of in special ground 5.
4. No errors of law were committed during the course of the trial which would indicate reversal of the case.
DECIDED OCTOBER 21, 1959 — REHEARING DENIED NOVEMBER 13, 1959.
A. P. Mathis, Jr., brought suit against Homer E. Overstreet and Judson B. Ackerman to recover $4,800 alleged to be due the plaintiff by the defendants, jointly and collectively, for real-estate commissions due on certain lots sold by the plaintiff, a duly authorized and licensed real-estate salesman.
The petition alleges substantially that the plaintiff was employed by the Commercial Trust Company and the Plaza Realty Company; that the defendants were officers of the said companies; that the defendants owned certain lots named in the bill of particulars, and contracted with the plaintiff, and other salesmen of the above named companies to sell lots for the defendants for a commission of $75 per lot, to be paid one-half at the time the lot was sold and the other one-half when a house was built on the lot and the sale of the house was closed; that demand was made on the defendants and payment of the indebtedness refused.
The defendant Ackerman demurred generally to the petition, and answered by way of a general denial of the indebtedness. The defendant Overstreet filed a general demurrer to the petition, and answered by way of a general denial of the indebtedness. The petition was amended, to which both defendants again filed general demurrers. The court overruled the demurrers of both.
On the trial, the jury returned a verdict in favor of the plaintiff in the amount for which suit was brought. The defendants filed a motion for new trial on the general grounds, and later amended by adding four special grounds. The court denied the motion for new trial. It is to this judgment that the case is here for review, as well as the judgment overruling the demurrers.
The evidence shows substantially that the plaintiff was a real-estate salesman for the Commercial Trust Company; that the lots sold and involved in the transactions now before this court were owned by the defendants; that checks paid to the plaintiff were signed by the defendants and were not checks drawn on the account of the Commercial Trust Company; that the plaintiff was to receive per lot a commission of $75, $37.50 to be paid when the builder started to build on a lot sold, and the balance, $37.50 per lot, was to be paid when the house was sold. The plaintiff testified that the amount involved here, $4,800, covered unpaid balances of $37.50 commissions on ten houses, and all commissions on 49 lots; that demand had been made and payment refused; that Plaza Realty Company was formed after the lots were sold, for reasons which did not concern the owners of the property or the commissions involved; that commissions on sales of houses were also paid, but had nothing to do with the commissions here involved.
The defendant Ackerman, called as a witness, as an adverse party for the purpose of cross-examination, testified in part as follows: That he was executive vice-president of the Commercial Trust Company during the time involved in the dispute involved in this case; that he and the defendant Overstreet owned the lots here involved; that the salesmen were to be paid 5% commission on the lots, which sold for $1,250 (this would amount to $67.50, but the witness finally admitted that the amount agreed upon was $75 per lot); that he considered that the financing of the lots sold them, not the efforts of salesmen. Alec Milner testified on behalf of the plaintiff that he had worked as a salesman for the Commercial Trust Company and that the salesman was supposed to receive certain commissions on lots sold. Witness thought that most of the salesmen received $37.50 when the lots were sold and the balance when a house built on a lot sold by the salesman was completed. The defendant Overstreet testified that he and the defendant Ackerman owned the lots jointly; that commissions for the sale of the lots went directly to the salesmen, and not to Commercial Trust Company. The defendant Ackerman also testified that the sales commission on the lots was 5% but he testified "I believe the agreement was that Mathis was to be paid $75 per lot." This witness confused the issue as to the commissions that were to be paid on certain lots.
1. The evidence is entirely sufficient to sustain the verdict of the jury.
2. Special ground 1 assigns error because it is contended that the court erred in charging the jury that if the defendants sold lots upon which commissions had been promised by the defendants such would be the basis of the recovery. The judge was charging correctly in view of the pleadings and the evidence when he charged the excerpt of which complaint is made in special ground 1. This special ground is not meritorious.
3. Special ground 2 assigns error because it is alleged that the court erred in charging the jury that an original contract made between the defendants and the plaintiff could not subsequently be changed in a sales meeting or otherwise, unless all parties acquiesced or agreed to such change. It seems to us that this excerpt from the charge of the court was as beneficial to the defendants as it was to the plaintiff. The evidence shows the agreements step by step and if any changes were made they were concurred in by all parties concerned. This special ground is not meritorious.
4. Special ground 3 contends that the charge of the court as a whole was prejudicial to the defendants because (a) the court at no time instructed the jury on any finding upon which a jury could base a verdict, and (b) the court never instructed the jury that a verdict could be returned for any sum less than $4,800. Counsel for the defendants cite, in support of this contention, Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 (6) ( 60 S.E. 868). In that case it was held that the contentions of all parties concerned should be charged. This is the correct principle of law and is of course applicable to the case at bar. Counsel also cites Harris v. Gay, 16 Ga. App. 342 ( 85 S.E. 355) to the same effect. We have read the entire charge of the court and it appears that the court charged fairly and adequately the contentions of the parties at bar. This special ground is not meritorious.
5. Special ground 4 assigns error because it is contended that the court said in charging the jury that the duty of the seller would end when a purchaser able and willing to buy and who actually purchased was secured, and that there would be no obligation to follow through and see that the houses were built or closed. The record does not disclose that it was up to the plaintiff to finance the building of the houses but rather when he sold the lot he had made half of the commission and when a house was completed on the lot the other half was earned. The evidence, as we interpret it, puts the duty of financing on someone other than the plaintiff. For this reason the judge did not err in charging the jury as contended in special ground 4.
6. Special ground 5 assigns error because it is alleged that the court erred in admitting, over objection of the defendants, questions and answers pertaining to sale of houses. After reviewing the evidence in the case, in view of this particular assignment of error, it seems essential to us that all phases of the contract of employment regarding commissions were properly before the court and jury. The matter of commission on lots sold was the controlling issue before us, but there was naturally injected into the case the matter of whether or not salesmen received commissions on sales of houses. For this reason the admission of testimony regarding commissions on sales was not harmful to the defendants. This special ground is not meritorious.
The judge properly overruled the demurrers of both the defendants.
The court did not err in any of the rulings and therefore did not err in denying the motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.