The petition set forth a cause of action for damages alleged to have been caused by an illegal and immoral conspiracy among the defendants to deprive the plaintiff of real-estate commissions allegedly earned by the plaintiff in producing a purchaser to whom the property was sold through the medium of a third party.

DECIDED OCTOBER 27, 1959 — REHEARING DENIED NOVEMBER 25, 1959.

Glassman Levin, a partnership, licensed real-estate brokers, sued Melrose Construction Company, a corporation, Hobart W. Crowe, Jr., and Beulah G. Leiter to recover $1,869 damages allegedly due by reason of a conspiracy by the defendants to deprive the plaintiff of an earned real-estate commission. The petition alleged: that on or about April 19, 1957, the corporate defendant owned a certain house and lot in Northeast Atlanta; that on or about said date Hobart W. Crowe, Jr., employed the plaintiff as real-estate brokers to sell the said house and lot under the following agreement: "Exclusive Sales Agency Contract, April 19, 1957, to Glassman Levin — In consideration of your agreement to list and endeavor to sell the property hereinafter described, the undersigned being the owner thereof, hereby gives you the exclusive right and authority to sell the property hereinafter described, for a period of 60 days from the date of this instrument. I hereby further agree upon the considerations hereinabove mentioned, to pay schedule of charges and/or rates of commission covering such transactions, as is now in effect, whether such sale be made by you or me, or by any other person acting for me or in my behalf, upon the terms hereinafter mentioned, or any other terms acceptable to me; or if property is afterwards sold within three (3) months from the termination of this contract, to a purchaser to whom it was submitted by us or you during the life of this contract. Property: Street Number, 1219 Poplar Grove Drive, N.E. Legal description: Outstanding Rental Contracts: Sale Price: Twenty-nine thousand and no/100 dollars. Outstanding Encumbrances: In any exchange of the aforesaid property, you are given the right, in negotiating such exchange, to collect commissioners [sic] on all properties involved in the transaction. This agency contract shall be binding upon, and inure to the benefit of the heirs, executors, administrators, and assigns of the respective parties hereto. The undersigned hereby accepts the above agency contract on the terms and conditions therein set forth. (signed) Hobart W. Crowe, Jr., Owner, 2559 Oak Grove Terrace, Decatur, Ga." The petition further alleged that the scale of commissions agreed on was five percent on the first $25,000 of sale price and three percent of the price over $25,000; that at the time the defendant Crowe executed the brokerage agreement he was the president of the corporate defendant, which owned the property, and was acting as the agent for the owner; that the plaintiff advertised the property and otherwise made efforts through its salesmen to sell the property at the price listed and for the best price obtainable; that the plaintiff obtained a customer ready, able and willing to purchase the property, the same being Beulah G. Leiter, who offered to purchase the property by offering to convey to the owner a house and lot owned by Beulah G. Leiter located in East Point, Georgia, and pay in addition the sum of $15,000; that the offer of Mrs. Leiter was submitted to the corporation and Crowe and was not accepted by them and the written purchase proposal and all copies were returned to Mrs. Leiter; that the terms of the Leiter offer were substantially that Mrs. Leiter would pay $27,300 for the Atlanta property, the seller would accept the Leiter East Point property at a value of $12,300, the difference to be paid by Mrs. Leiter at the time of closing the transaction; that on May 30, 1957, Mrs. Leiter wrote the plaintiff as follows: "In conjunction with the proposed contract for the sale of the property at 1219 Poplar Grove, Atlanta, Georgia, delivered today to your representative, Mrs. David Kletzky, signed by B. G. Leiter, buyer — with certain special stipulations attached thereto, I hereby agree to pay to you a commission of 5 percent of the sale price of $12,300 for my house at 812 Semmes Street, East Point, Georgia, in connection with the closing and consummation of the aforementioned proposed contract of sale, upon the terms and conditions therein set forth. It is understood, that in the event that said proposed contract of sale is not consummated that the agreement herein contained with reference to commissions on the East Point property is to be void and of no force and effect. It is understood and agreed that the undersigned does not obligate herself in any way for any charges, in the event this sale is not consummated. (signed) Beulah G. Leiter."; that the plaintiff is unable to attach a copy of the contract referred to in the letter just quoted because the original and all copies were returned to Mrs. Leiter; that on or about August 12, 1957, the corporate defendant wrote plaintiff as follows: "This letter is your notice that our contract giving you the exclusive right to sell the property of Melrose Construction Company located at 1219 Poplar Grove Drive, N.E., has expired. I would like to terminate any future relations between the two companies as regards this property. Please remove your signs as soon as conveniently possible. Thank you. (signed) Hobart W. Crowe, Jr."; that plaintiff procured Mrs. Leiter as a purchaser for said property for the corporate defendant and the defendant Crowe; that while negotiations between seller and buyer had apparently terminated and the plaintiff was so advised, the Atlanta property was purchased by Mrs. Leiter by warranty deed dated September 11, 1957; that on September 11, 1957, the corporate defendant conveyed the Atlanta property to Patillo Lumber Company and that simultaneously Patillo Lumber Company conveyed the same property to Beulah G. Leiter; that the deed from Patillo Lumber Company to Mrs. Leiter was witnessed by the defendant, Hobart W. Crowe, Jr.; that on September 11, 1957, Mrs. Leiter conveyed to Patillo Lumber Company by warranty deed her property in East Point, Georgia; that the use of Patillo Lumber Company as a go-between was to enable the corporation and Mrs. Leiter to effect an exchange of their properties and avoid the payment of commissions to the plaintiff and the use of Patillo Lumber Company without making provision for the payment of commissions was in bad faith and was for the purpose of defrauding the plaintiff; that the plaintiff procured said customer as ready, able and willing to buy and brought the corporation and Mrs. Leiter together so that an exchange of properties could be effected between them. The prayer was for damages of $1,869, the amount of commissions which would have been realized on the two sales if the defendants had effected the sales through the plaintiff. The court sustained the general demurrers of all three defendants and the plaintiff excepts.

FELTON, Chief Judge.

The court erred in sustaining the general demurrers of the defendants. The allegations of the petition set forth a cause of action in tort as against the general demurrers. The allegations are sufficient to allege the combination of two or more persons to do that which is unlawful and immoral by unlawful and immoral means. Fellton v. Orkin Exterminating Co., 92 Ga. App. 186 (1) ( 88 S.E.2d 463) and cases cited. See Young v. Wilson, 183 Ga. 59 (2g) ( 187 S.E. 44). It is immaterial that Hobart W. Crowe, Jr., did not own the property at the time he listed the property for sale. He could not escape liability for commissions by asserting nonownership of the property. Further, it is alleged that Mr. Crowe was acting as agent for the corporation and facts are alleged which are sufficient to show a ratification of Mr. Crowe's acts even if he acted initially without authority. It cannot be denied that the corporation benefited from Mr. Crowe's acts and conduct. True, it is not alleged what was the exact consideration for the deeds from the corporation to Patillo Lumber Company, from Patillo Lumber Company to Mrs. Leiter and from Mrs. Leiter to Patillo Lumber Company but it would be immaterial whether the exchange of properties was on the same terms as were allegedly procured by the plaintiff. If the parties controlling the sales utilized the efforts of the plaintiff in dealing with the purchaser procured by the plaintiff, the plaintiff would be entitled to its commissions on both sales. Moreover, the amount sued for shows that the consideration for the exchange was slightly less than the terms allegedly procured by the plaintiff called for. Where the broker is the procuring cause, the owner is liable for commissions even if he sells to the broker's prospect at a price less than that listed with the broker. Spence v. Walker, 92 Ga. App. 609 ( 89 S.E.2d 668) and cases cited. The broker is entitled to commissions when he produces a purchaser who consummates the sale on terms satisfactory to the owner. Code (Ann.) § 4-213, catchwords "Carrying out contract."

Judgment reversed. Quillian and Nichols, JJ., concur.