Opinion
32996.
DECIDED MAY 5, 1950.
Complaint; from Floyd Superior Court — Judge Nichols. February 4, 1950.
Wright, Rogers, Magruder Hoyt, Dudley Magruder Jr., for plaintiff.
Henry J. Fullbright Jr., for defendant.
Each count of the petition stated a good cause of action for real-estate broker's commission and the court erred in sustaining the demurrers thereto.
DECIDED MAY 5, 1950.
Harold P. Gilmer sued Charles L. Carnes for real-estate broker's commission. The first count of the petition as amended substantially alleged: that prior to October 13, 1949, defendant owned a certain house and lot in Rome, Georgia, that on or about August 10, 1949, plaintiff, a licensed and operating real-estate broker, contacted defendant with respect to handling the sale of such property; that it was agreed that plaintiff would act as defendant's agent in selling the property at a commission of $750; that it was agreed at such time that the sale price of the property would be $22,500; that on or about September 26, 1949, defendant notified plaintiff that he had reduced the sale price to $21, 750; that plaintiff immediately after the agency agreement began work on such sale and contacted the First Methodist Church of Rome, Georgia, concerning the sale of such property to the church as a home for their pastor; that the church, through a committee authorized to handle such matter, evinced interest in defendant's property; that plaintiff carried several members of such committee to defendant's property showing them the house and explaining its desirable features, etc.; that they appeared to be interested but expressed a desire to look further before reaching a definite decision; that plaintiff continued his efforts to negotiate the sale of such property to the church, contacting the various members of the committee and members of the board of trustees; that at this time another real-estate broker, one Merrill Ewing, was also interested in selling the church a home for their pastor but that he was unable to interest the church seriously in any place he then had listed for sale; that Ewing, receiving information that the church was interested in the Carnes property, went to defendant sometime during September or October and secured permission of defendant to attempt to sell such property; that on or about September 26, 1949, while plaintiff was still negotiating with the church for the sale of the Carnes property, he was informed that defendant was about to sell the property to the church through Ewing; that plaintiff then notified defendant in writing that he considered himself to be the procuring cause of the sale of such property in so far as the First Methodist Church was concerned and that plaintiff intended to hold defendant liable if he consummated the sale to the church through Ewing; that without replying and while plaintiff was still negotiating with the church, defendant, on October 13, 1949, executed a warranty deed conveying the said property to Merrill Ewing for the consideration of $21,000, and that on the same day Ewing executed a warranty deed conveying said property to the Board of Trustees of the First Methodist Church of Rome for the consideration of $21,750; that the conveyance of the property through Ewing to the church was simply a scheme or device used in an effort to avoid the payment to plaintiff of his commission, and amounted to a sale by Carnes to the church and the payment to Ewing of a commission of $750; that plaintiff was the original procuring cause of the sale in that he first showed the property to the ultimate purchasers and interested them in the property to the extent that they eventually consummated the purchase; that the defendant knew the plaintiff had first contacted and shown the house to the church and was the primary procuring cause of the sale.
Count two as amended alleged substantially the same facts as did count one with the additional following allegations: that during October, 1949, the exact date being unknown to plaintiff, while plaintiff was still negotiating with the church for the purchase of defendant's property, defendant, without notifying plaintiff or allowing him any opportunity to discuss the situation, executed an option to Ewing granting Ewing the right to purchase the property for the sum of $21,000; that at the time he executed this option defendant knew that Ewing intended to exercise the option in order to effectuate the sale of the property to the church; that defendant and Ewing used such means as a subterfuge and device with the intention to avoid paying plaintiff his just commission on the sale of the property; that subsequently and on October 13, 1949, Ewing exercised such option and the defendant by warranty deed conveyed the property to Ewing for the recited consideration of $21,000; that on the same day Ewing executed a warranty deed conveying the property to the Board of Trustees of the First Methodist Church of Rome for the recited consideration of $21,750; that at the time defendant executed the option to Ewing defendant knew that plaintiff had first contacted the church and had first carried members of the church committee to inspect the property and knew that plaintiff was still negotiating with the church; that defendant knew that Ewing, in procuring the option, intended to secure the property for the church without paying plaintiff his commission. The defendant demurred: generally to the petition as a whole; generally to counts one and two; to counts one and two because they were defective in not alleging (1) that plaintiff had any definite sales agreement with defendant at any fixed sale price, (2) that plaintiff had an exclusive listing of the property of defendant, (3) that plaintiff procured a purchaser ready, able and willing to buy and who actually offered to buy on terms stipulated by defendant, (4) that plaintiff ever procured or submitted to defendant any offer for the property, but rather only alleged that he showed the property to persons who appeared to be interested but expressed the desire to look further before reaching a definite decision. Special demurrers were also filed alleging certain allegations of the petition to be conclusions of the pleader. In response to (1) above, plaintiff filed amendments to counts one and two alleging an original agreement between plaintiffs and defendant that the sale price would be $22,500, which was later reduced as between plaintiff and defendant to the sum of $21,750, the price subsequently paid by the church for the property. To the amended petition defendant renewed his demurrers in all respects which the court sustained, and the plaintiff excepted.
An owner who has placed his property in the hands of a broker for sale cannot defeat the obligation to pay a commission to such broker by selling the property through another broker, knowing that the purchaser was procured by the first broker and that negotiations between the two were still pending. Gresham v. Lee, 152 Ga. 829 ( 111 S.E. 404); Doonan v. Ives Krouse, 73 Ga. 295. In a suit for the recovery of such commission the first broker need not allege that he had a purchaser who was ready, willing and able to buy the property, as the property was actually sold to that purchaser. Wilharbla Realty Co. v. Carrington, 60 Ga. App. 353, 355 ( 3 S.E.2d 785). The defendant's demurrers do not point out a single defect in the plaintiff's amended petition. It alleges an agreement between the plaintiff and the defendant to sell the property at a stipulated price of $21,750; the procurement of a prospective purchaser of the property; the continued negotiation of the plaintiff with such prospect up to the time of the sale of the property to such prospect by another broker; the knowledge of the defendant that such negotiations were pending; written notice to the defendant almost three weeks prior to the sale that the plaintiff considered himself the procuring cause of the sale if the defendant effected the sale to the prospect through another broker; an agreement between the defendant and the selling broker to defraud the plaintiff of his commissions; and the actual sale of the property through another broker at the same price stipulated between the plaintiff and the defendant as the sale price. The defendant in error contends that the listing of the property with the plaintiff was not an exclusive one and that therefore the owner could sell the property himself. While it is true that an owner may sell his own property if the listing of this property with a broker is not an exclusive listing, the owner may not, without being liable for broker's commissions, sell such property to a purchaser with the knowledge that the purchaser had been procured by the acts of the broker claiming commissions. State Life Insurance Co. v. Whitehurst, 67 Ga. App. 646,648 (21 S.E.2d 474). The plaintiff alleges that the sale of the property by the defendant to the selling broker for $21,000 and the sale of the property by such broker to the church the same day for $21,750, the sale price agreed to between the plaintiff and the defendant, amounted to a sale of the property to the church by the defendant, through the selling broker with a commission of $750 to the broker, the same commission as agreed to between the plaintiff and the defendant. A jury might be authorized to find such to be the truth of the case. The plaintiff alleges his own labor and efforts to be the procuring cause of the sale of the property, but if in fact his efforts were not the procuring cause of the sale, the defendant will have an opportunity of so showing, in the trial of the question of who was the procuring cause of the sale, the question being one for a jury. Nicholson v. Smith Son, 29 Ga. App. 376 ( 115 S.E. 499). Jordan v. Dolvin Realty Co., 54 Ga. App. 472 ( 188 S.E. 304), is distinguishable from the case at bar, for in that case there had been an exclusive agency which was revoked before the closing of the sale, and the uncontradicted evidence was to the effect that the efforts of the broker seeking to collect the commission were not the procuring cause of the sale, but that he himself stated that he was unable to put the sale over. The allegations of the petition contended by the defendant to be conclusions of the pleader are allegations of fact and the special demurrers thereto are without merit.
Each count of the petition sets out a good cause of action, and the court erred in sustaining the demurrers thereto.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.