Opinion
42945.
ARGUED JULY 6, 1967.
DECIDED JULY 11, 1967. REHEARING DENIED JULY 21, 1967.
Action for broker's commission. DeKalb Civil and Criminal Court. Before Judge Morgan.
Jack V. Dorsey, for appellant.
Harrison, Martin Childs, John S. Harrison, J. Ed Segraves, for appellees.
1. The general demurrer to the petition was properly overruled.
2. No error appears in the admission of a check tendered as the consideration for an option contract negotiated by the real estate agents between their prospective purchaser and the owner, although the owner did not obtain the check or use it.
3. No questions are raised as to portions of the charge where there is no reference in the enumerations or in the brief as to portions of the record indicating that the objections were made prior to verdict and what the objections may have been.
4. Overruling of the motion for new trial and of the motion for judgment notwithstanding the verdict was proper.
ARGUED JULY 6, 1967 — DECIDED JULY 11, 1967 — REHEARING DENIED JULY 21, 1967 — CERT. APPLIED FOR.
Tucker Real Estate Company and Catherine L. Banks brought suit against A. B. Matthews for recovery of a real estate commission alleged to have been earned by them in connection with a sale by Matthews of a farm which he had listed for sale with Tucker Real Estate Company.
It appears that Matthews executed to Tucker an exclusive sales agency contract June 22, 1963, agreeing to pay a ten percent commission if the sale were made within three months from that date or within three months from termination of the agency. No sale was made within the six month period, but Matthews requested the agency, which had advertised the farm extensively and had (through Mrs. Banks) shown it to a number of prospects, including Fred Williams, to continue their efforts to sell. They succeeded in interesting Williams in a purchase of the property to the extent that he asked for an option on it and Matthews granted it, through the agency, on April 8, 1964, agreeing therein to sell the land to Williams on stipulated terms on or before May 12. Williams left his check for $100 for the option with the agency, the proceeds to be paid over to Matthews, who was notified of the check and requested to come by for it, but never did. Although the sale was not completed before expiration of the option, Matthews did sell the land to Williams on June 12, for a slightly less amount than had been agreed in the option, and upon substantially the same terms.
Matthews refused to pay the commission, contending that the agency or listing had expired and that he made the sale directly himself, pointing out further that he had reserved the right to make direct sales in the original exclusive listing agreement.
On the trial of the case the jury returned a verdict for the plaintiff and defendant appeals from the overruling of his general demurrer to the petition, and from the overruling of his amended motion for new trial and for a judgment n.o.v.
1. It is contended that the general demurrer was improperly overruled because of a faulty description of the land in the listing contract, and in the option contract. While the description in the agency listing is defective, being "137 acres in Gwinnett County, Georgia," that contained in the option contract which Matthews signed to Williams is not. It describes the property as being "137 acres of Lot 43 of the 5th District of Gwinnett County, Georgia," and "further described on a survey and plat by C. R. Parrish, Jr., Registered Surveyor, dated January 6, 1955, which is hereby incorporated into and made a part of this contract and the legal description of the property to be conveyed. Copy of said plat being attached hereto."
Although the original listing agreement had expired, plaintiffs testified that Matthews asked them to continue their efforts to find a purchaser, and the option was secured by them. It is alleged that although they had interested Mr. Williams in the purchase of the property, Matthews simply awaited the expiration of the option agreement, effected a sale for a slightly lower figure to the same person and on substantially the same terms, by-passing the agents and paying no commission. In so doing he received a greater consideration than he would have received by a payment of the commission. The general demurrer was properly overruled.
2. There was no error in admitting the check from Williams for $100 which he left with the sales agents as a consideration for the option contract from Matthews. Having signed the option contract for delivery to Williams, it is immaterial that he did not thereafter take or use the check.
3. Although there are several enumerations of error as to portions of the charge to the jury, there is no reference in the brief as to any portion of the record disclosing that the objections were made prior to verdict, or, if so, what the objections may have been. Since on appeal one is confined to the objections then made, if they were made, no question is raised for our consideration by these enumerations. Haskins v. Carson, 115 Ga. App. 336 (2) ( 154 S.E.2d 626); Palmer v. Stevens, 115 Ga. App. 398 (14) ( 154 S.E.2d 803).
4. The factual questions as to whether plaintiffs, as defendant's agent, were the efficient procuring cause of the sale which he made of the farm were for resolution by the jury. Overruling of the general grounds of the motion for new trial and of the motion for judgment notwithstanding the verdict was proper. Gresham v. Connally, 114 Ga. 906 ( 41 S.E. 42); Washington v. Jordan, 28 Ga. App. 18 ( 109 S.E. 923). The special grounds of the motion for new trial are disposed of by our rulings in Divisions 1 and 2.
Judgment affirmed. Felton, C. J., and Hall, J., concur.