Opinion
35154.
DECIDED MAY 15, 1954.
Breach of contract. Before Judge Etheridge. Fulton Civil Court. February 26, 1954.
Hurt, Gaines Baird, W. Neal Baird, for plaintiff in error.
Poole, Pearce Hall, John J. Poole, contra.
1. By the terms of the Real Estate Brokers and Salesmens Act (which is of force and effect in Fulton County, Ga. L. 1943, pp. 572-574; Code, Ann. Supp., § 84-1401), "No person, firm, or corporation shall have the right to enforce in any court any claim for commissions, profits, option profits, or fees for any business done as real estate broker or salesman, without having previously obtained the license required under the terms of this Chapter." Code § 84-1413.
2. An action brought by a real-estate broker to recover damages for breach of an alleged contract for commissions is subject to general demurrer when it fails to allege that the broker has fully complied with the license laws, whether the point was argued and considered in the trial court or not. Mayo v. Lynes, 80 Ga. App. 4 ( 55 S.E.2d 174); Moody v. Foster, 74 Ga. App. 829 (3) ( 41 S.E.2d 560).
3. Under an application of the foregoing rules of law, the trial court did not err in sustaining general demurrers to both counts of the present petition, neither of which alleged a compliance with the real estate brokers' and salesmen's license laws.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED MAY 15, 1954.
Herbert A. Cline, doing business as Herbert A. Cline Company, brought an action in two counts against Mrs. Elinor P. Crane. The material allegations of count 1 are substantially as follows: The defendant is indebted to the plaintiff in the sum of $800 by reason of the following facts. Some time prior to January 10, 1949, J. M. Kent, of the State of Tennessee, had listed with the plaintiff for sale his house and lot, which are located at 3820 Ivy Road, N.E., in the City of Atlanta. On Monday, January 10, 1949, the defendant inquired about the house and lot, and the plaintiff showed it to her and to her and her husband. On the same day the defendant executed an agreement to purchase the house and lot. A photostatic copy of the agreement is attached to and made a part of the petition. A full and complete legal description of the property is contained in that agreement. At the same time the defendant delivered to the plaintiff her personal check in the amount of $1,000, representing the earnest money under the agreement. A photostatic copy of the check is attached to and made a part of the petition. Thereafter, but on the same day, the plaintiff telephoned J. M. Kent and requested a telegram with respect to the sale of his property, and Kent telegraphed the plaintiff as follows: "Your offer 20000.00 Ivy Road property including stove tractor and incidental accept. J. M. Kent." A photostatic copy of the telegram is attached to and made a part of the petition. Upon receiving the telegram, the plaintiff telephoned the defendant and told her of the acceptance and no protest was made by the defendant. Thereafter, but on the same day, the plaintiff executed the sales agreement on behalf of Kent pursuant to the telegraphic authority. The next day, January 11, 1949, the plaintiff, pursuant to the request of the defendant, deposited the sales agreement with Atlanta Title Company, and also, pursuant to the defendant's request, arranged with Georgia Power Company for the transfer of the agreement to furnish lights to the defendant and arranged also for the furnishing of water by the City of Atlanta. On the morning of January 11, 1949, the plaintiff deposited the check in the amount of $1,000 at the Fulton National Bank in Atlanta. On the afternoon of January 11, 1949, the defendant informed the plaintiff that she did not want the house and did not intend to go through with her agreement. On January 13, 1949, payment was stopped on the check. The sales agreement provided that, if the sale was not consummated due to the default of the buyer, then the buyer shall pay the commissions as provided for in the contract. Due to the default of the buyer (that is, the defendant), the sale was not consummated, and the defendant is, therefore, due the plaintiff the commissions, which under the terms of the agreement amount to $800, but the defendant fails and refuses to pay the commissions or any sum whatsoever.
The allegations of count 2 are identical with those of count 1 save that count 2 alleges that the plaintiff is entitled to recover of the defendant on the check to the extent of the commission earned under the terms of the agreement.
The defendant demurred to count 1 on the grounds that it failed to set forth a cause of action, and that the petition shows on its face that the plaintiff is attempting to sue in his own name upon a purported contract as to which he is not a party; and demurred to count 2 on the ground that it failed to state a cause of action. Each of these demurrers was sustained and the plaintiff has brought the present writ of error to have that judgment reviewed.