Opinion
33179.
DECIDED OCTOBER 19, 1950. REHEARING DENIED NOVEMBER 16, 1950.
Certiorari; from DeKalb Superior Court — Judge Guess. May 25, 1950.
Noah J. Stone, Frank A. Doughman, for plaintiff.
R. R. Tisdale, A. E. Wilson, for defendant.
The petition to recover a commission from a seller of real property is defective in that it fails to allege facts showing that the obligation to pay the commission was on the seller by reason of his default in complying with the contract.
DECIDED OCTOBER 19, 1950. REHEARING DENIED NOVEMBER 16, 1950.
Dean D. McKoy, d/b/a Dean D. McKoy Realty Company, sued Mrs. Lola H. Smith for broker's commission. The material allegations of the petition are : "3. Plaintiff shows that on November 6th this defendant through the plaintiff, as her agent, accepted a proposition from Mr. R. E. McClure for the sale of defendant's land known as 1185 Sheridan Road, and more particularly described as shown in the copy of said contract, a copy of which is attached hereto, marked Exhibit `A' and made a part of this petition. 4. Plaintiff shows that while acting as the defendant's agent he procured a buyer, Mr. R. E. McClure, who was ready, able and willing to buy said property. The defendant signed the sale contract on November 6th, but has defaulted and refuses to comply with the terms of the said contract and deliver the property. 5. Plaintiff shows that under the terms of said contract he is entitled to a commission of $860, which the defendant refuses to pay." Exhibit "A" is a contract whereby R. E. McClure agreed to purchase through plaintiff as agent for defendant certain described property for the sum of $22,000, "to be paid as follows: $4500 cash on closing, and obtain a loan or loans in the amount of $17,500, failing to obtain said loan or loans this contract shall be null and void and all earnest money returned to buyer." The contract further provided: "It is understood and agreed that should either party hereto default in the faithful performance of this contract, the party defaulting shall immediately pay the agent's commission." On defendant's oral motion the court dismissed the action. Plaintiff's certiorari to the DeKalb Superior Court was overruled and he excepts.
This action is predicated on the provision of the written contract which obligates the defaulting party to pay the commission. The petition fails to show liability on the part of the seller for the reason that the contract was only conditionally binding on the purchaser and that was when he obtained the necessary loan or loans. The seller would not be in default until the purchaser obtained the loan or loans within a reasonable time and tendered the full purchase price. In the absence of allegations of fact showing that the purchaser had obtained the loan or loans and tendered the purchase-price, the petition failed to show the default of the seller. There is no authoritative ruling in Brown v. White, 73 Ga. App. 524 ( 37 S.E.2d 213), in conflict with what is here ruled. The judgment in that case is correct under the facts there appearing. In view of the fact that the action was dismissed by the trial court for the reason that the contract sued on was too vague and indefinite to be enforceable, the judgment of the superior court overruling the certiorari is affirmed with direction that the superior court overrule the certiorari and in its judgment give direction that the plaintiff below be permitted to amend the petition to meet the ruling in this case, in which event the original action shall be reinstated. Authorities for authorizing amendments and reinstatements of action where judgments dismissing them are affirmed are as follows: Dennis v. Schofield, 1 Ga. App. 489 ( 57 S.E. 925), and citations; McRae v. Sears, 183 Ga. 133 ( 187 S.E. 664); Code, § 6-1610; Sanders v. First Nat. Bank of Atlanta, 189 Ga. 450 ( 6 S.E.2d 294); Brown v. Bowman, 119 Ga. 153 ( 46 S.E. 410).
Judgment affirmed with the above direction. Sutton, C.J., and Worrill, J., concur.