Opinion
32263.
DECIDED JANUARY 21, 1949. REHEARING DENIED FEBRUARY 11, 1949.
Complaint; from Fulton Civil Court — Judge J. Wilson Parker. October 1, 1948. (Application to Supreme Court for certiorari.)
Clapp Gaines, Raymond A. Mulkey, for plaintiff in error.
Grant, Wiggins, Grizzard Smith, contra.
1. The exclusive agency contract here involved is not void for want of mutuality.
2. The contract is not too vague and indefinite to be enforced.
3. The question of the correct measure of damages is not raised by general demurrer.
DECIDED JANUARY 21, 1949. REHEARING DENIED FEBRUARY 11, 1949.
Wade A. Browne instituted an action against Lester C. Werder to recover damages alleged to have been suffered as a result of the defendant's breach of an exclusive agency contract. The petition alleged substantially the following: "On or about April 26, 1948, defendant, acting by and through his authorized agent, as aforesaid, entered into a verbal agreement with petitioner by the terms of which in consideration of the appointment of plaintiff as agent of defendant to secure for defendant a purchaser for said property, the consideration for said sale to be twenty-one thousand ($21,000) dollars, defendant to deliver to purchaser a deed conveying fee-simple title, petitioner agreed to endeavor to secure a purchaser for said property on the terms stipulated by defendant"; that the plaintiff was given the exclusive sales agency for the property and such agency relationship was to remain in effect until "on or about the 15th day of June, on which date defendant anticipated removing with his family to the City of Miami, Florida"; that the plaintiff immediately began to promote sale of said property by contacting purchasers and showing the property to them and also inserted advertisements in a local paper; that the plaintiff was to receive on the sale of the property 5% on the first $10,000 of the sales price, and 3% on all in excess of said $10,000; that on May 20, 1948, while the exclusive sales agency was in effect the plaintiff entered into a contract of sale for said property with a purchaser procured through Drake Realty Company, another real estate broker, thus breaching the exclusive agency contract and damaging the plaintiff in the sum of $830.
1. Under the ruling by the Supreme Court in Hill v. Horsley, 142 Ga. 12 ( 82 S.E. 225), the contract here involved was not void for want of mutuality. In that case the action was for breach of contract and not to recover for commissions earned under the terms of the contract. The only practical difference between that case and this one is that in this case no measure of damages is provided in the contract in the event of a breach. This court, in Thompson v. Hudson, 76 Ga. App. 807 ( 47 S.E.2d 112), a case very similar to Hill v. Horsley, supra, followed the Supreme Court ruling. A number of cases decided by this court where actions were brought for commissions under similar contracts have held the contracts void for want of mutuality. If these are contrary to the Supreme Court ruling, it, of course, governs. It seems to the writer, speaking for himself alone, that the rulings in the cases by this court should have been based on the theory that the petitions set forth no cause of action on the contracts for commissions for the reason that no compliance with the terms of the contract was alleged — in other words, because the commissions were not earned under the terms of the contract. The court did not err in holding that the contract was not void for want of mutuality.
2. The petition alleged that the exclusive agency was to be in effect from date of agreement to "on or about the 15th day of June, on which date defendant anticipated removing with his family to the City of Miami, Florida." The alleged date on which the contract was to come to an end is not so vague and indefinite as to render the contract void and unenforceable. The date on which the defendant anticipated removing with his family to Miami, Florida is a definite time, capable of being sustained by proof. The court did not err in holding that the contract was not too vague and indefinite to be enforced.
3. Only a general demurrer was filed, so no ruling is called for as to what is the correct measure of damages for a breach of such a contract where the contract does not itself provide therefor.
The court did not err in overruling the general demurrer.
Judgment affirmed. Sutton, C. J., and Parker, J., concur.