Opinion
38710.
DECIDED APRIL 18, 1961.
Action for commissions. Fulton Civil Court. Before Judge Camp.
E. T. Hendon, Jr., for plaintiff in error.
Heyman, Abram Young, John H. Hicks, contra.
Under the contradictory allegations of the petition and exhibit the petition does not set forth a cause of action in the plaintiff because the petition and exhibit show that if a cause of action exists it does not belong to the plaintiff but to another separate and distinct party.
DECIDED APRIL 18, 1961.
R. Pierce Chatham sued B. C. McDow for a real-estate commission. The petition alleged as follows: "1. The defendant is a resident of said State and county residing at 1927 Meadow Avenue, S.E., Atlanta, Georgia, and is subject to the jurisdiction of this court. 2. At all times hereinafter mentioned in said petition, the plaintiff and defendant were licensed real-estate brokers in the State of Georgia. 3. Your plaintiff shows that the defendant had an exclusive real-estate sales contract with one Mrs. Mary C. Caldwell covering a tract of land which is more fully hereinafter described in plaintiff's Exhibit `A'; and your plaintiff shows that this contract is in the possession of the defendant and its contents fully known to the defendant. 4. Your plaintiff shows that he had a prospect for the purchase of said land; and the plaintiff and defendant entered into an oral agreement whereby each would share equally in a ten percent commission on the sale of said property if purchaser was procured by your plaintiff. 5. Your plaintiff shows that the foregoing agreement between the plaintiff and the defendant was reduced to writing and incorporated in the plaintiff's Exhibit `A' hereinafter referred to. 6. Your plaintiff shows that pursuant to the foregoing agreement between himself and defendant, he procured a ninety-day option from the owner of said property, Mrs. Mary C. Caldwell, to purchase said property for $110,000. Said option was executed on the 24th day of February, 1960, and was for a period of ninety days from said date. A copy of said option agreement is attached hereto, marked Exhibit `A' and made a part hereof by reference thereto. 7. Your plaintiff shows that he procured a purchaser for said property, to wit: the American Oil Company; and your plaintiff executed to said American Oil Company a ninety-day purchase option with the knowledge and consent of the defendant. 8. Your plaintiff shows that said purchaser, American Oil Company, required additional time in which to make surveys, plats, etc., to determine whether or not it would exercise said purchase option; and your plaintiff shows that the said defendant did procure from the owner of said property, Mrs. Mary C. Caldwell, an extension of forty-five days on the purchase option executed to the plaintiff on February 24, 1960. Your plaintiff shows that said extension is in the hands of the defendant. 9. Your plaintiff shows that the said American Oil Company was at all times ready, willing and able to exercise its purchase option and would have within the time of the authorized extension and would have so exercised said purchase option except for the acts of the defendant which are hereinafter set forth. 10. Your plaintiff shows that the purchase option executed to the said American Oil Company by your plaintiff provided for a total sales price of $110,000, which would have netted the plaintiff and defendant an earned commission of $10,000 to be divided equally between them. 11. Your plaintiff shows that the original purchase option referred to as Exhibit `A' together with the extension of forty-five days granted by the said owner extended until July 8, 1960. 12. Your plaintiff shows that the said defendant breached his contract with your plaintiff by executing a contract of sale to the Tri-Oil Company on June 27, 1960, for the sum of $110,000 without the knowledge or consent or acquiescence on the part of your plaintiff whatsoever. 13. Your plaintiff shows that thereafter he and the American Oil Company obtained knowledge of this transaction between the defendant and the Tri-Oil Company; and the American Oil Company, solely because of a desire not to be involved in litigation with the Tri-Oil Company, who acted without knowledge of said American Oil Company's purchase option, did not exercise its purchase option, but said American Oil Company was ready, willing and able and would have exercised said purchase option except for the act of said defendant in procuring said contract with the said Tri-Oil Company within the time limit of the purchase option of said American Oil Company. 13. [sic] Your plaintiff shows that he had fulfilled all of his obligations of his contract with the defendant; and the plaintiff and defendant would have realized a $10,000 commission, of which the plaintiff would have been entitled to $5,000 except for the breach as hereinafter set out on the part of the defendant. Your plaintiff shows that said conduct on the part of the defendant in breaching his contract with your plaintiff was in bad faith and was done with the purpose and intent of defeating your plaintiff's claim to one-half of the total sales commission, or $5,000; and by reason of said bad faith, your plaintiff is entitled to attorney's fees in the sum of $1,000, which he alleges and contends is reasonable." Exhibit "A", referred to in paragraph 5 of the petition, shows that the agreement set forth in paragraph 5, as reduced to writing by Exhibit "A", shows that the contract as stated in Exhibit "A" is as follows: "9. 10% commission to be shared equally by B. C. McDow Realty Co., 1927 Meador Ave., S.E. and Chatham Bros. Realty Co., 2901 Buford Hiway, N.E." The court sustained the defendant's general demurrer and dismissed the action, and the plaintiff excepted.
The petition alleges that the plaintiff, an individual, entered into the alleged contract for a division of commissions with the defendant, an individual. The petition further alleges that the "foregoing agreement" was reduced to writing and incorporated in the option granted by the owner of the property to the plaintiff. The provision in the option relating to the commission is as follows: "10% commission to be shared equally by B. C. McDow Realty Company, 1927 Meador Ave., S.E., and Chatham Bros. Realty Co., 2901 Buford Hiway, N.E." In this view, in the absence of any assignment of the contract to the plaintiff, any cause of action for the breach of a commission contract, which may exist, would be in Chatham Bros. Realty Company and not the plaintiff, and against B. C. McDow Realty Company.
Judgment affirmed. Bell, J., concurs. Nichols, J., concurs in the judgment.
While I concur in the judgment of affirmance I cannot concur in the reasons stated in the majority opinion. The petition shows that the contract sued on was a contract between the plaintiff and the defendant whereby they would share the commission equally. The exhibit shows that the payment of such commission would be made to the real-estate companies. It was alleged that both the plaintiff and the defendant were licensed real-estate brokers and the exhibit merely shows that the payment would be made to their respective companies. Persons can contract and provide that the payments due under such a contract will be made in the trade name.
However the judgment sustaining the defendant's general demurrer was proper. The plaintiff seeks to recover from the defendant because the defendant breached a contract with the plaintiff. The petition alleged in substance that the plaintiff had a prospect for the sale of certain realty, that the defendant had an exclusive sales contract with the owner of such property, that therefore the plaintiff and the defendant agreed that if the plaintiff obtained a purchaser for the property the commission on such sale would be divided between them, and thereafter the owner of such property (for a consideration), gave the plaintiff an option to buy such property which option contained the provisions of the agreement between the plaintiff and the defendant to divide the commission on the sale in the event the option was exercised and the property sold, that the plaintiff then gave his prospective purchaser an option to buy the property and when the plaintiff's purchaser could not complete its investigation within the option period the defendant obtained an extension of the option to the plaintiff from the property owner, that during the period of the extension the defendant procured the owner to sign a sales contract with the purchaser procured by the defendant and when the plaintiff's prospective purchaser learned of the sales contract it refused to pursue the matter further although it was otherwise ready, willing and able to buy the property for the agreed price, and that the defendant is indebted to the plaintiff in the amount of one-half of the total commission because he breached the contract between the plaintiff and the defendant.
While the petition alleged that the owner of the property breached the option contract and that the defendant procured such breach, the cause of action is based on a breach of a contract between the plaintiff and the defendant and not for the malicious injury to the plaintiff's business by the defendant. See Southern Ry. Co. v. Chambers, 126 Ga. 404 ( 55 S.E. 37, 7 L.R.A. (NS) 926); Luke v. DuPree, 158 Ga. 590 ( 124 S.E. 13), and citations. Therefore, the sole question for decision is whether the petition alleged a breach by the defendant of a contract between the plaintiff and the defendant.
The contract between the plaintiff and the defendant was that they would divide the commission if the plaintiff obtained a purchaser for the property. The defendant was not a party to the original option between the plaintiff and the property owner, nor would the allegation that the defendant obtained an extension of such agreement from the property owner make the defendant a party to such contract. While, under the provisions of Code § 4-213 it was not necessary that the plaintiff procure a purchaser who was ready, willing and able to purchase such property and who actually offered to buy such property on the terms stipulated by the owner (see Kuniansky v. Williams, 101 Ga. App. 678, 115 S.E.2d 204, and citations), the petition failed to allege any offer on the part of the plaintiff's prospective purchaser, and since the defendant was not a party to the alleged option, any alleged breach of such option by the property owner would not render the defendant liable for the breach of a separate contract between the plaintiff and the defendant. The judgment of the trial court sustaining the defendant's general demurrer was not error.