Opinion
33268.
DECIDED DECEMBER 1, 1950.
Complaint; from Walker Superior Court — Judge Nichols. July 25, 1950.
G. W. Langford, Matthews, Owens Maddox, for plaintiffs in error.
Fariss Fariss, Maddox Maddox, contra.
The court did not err in overruling the general and special demurrers to the petition.
DECIDED DECEMBER 1, 1950.
T. W. Price sued ten individuals in Walker Superior Court alleging substantially: that petitioner for a long period of time has been engaged as a real-estate and timber broker, finding the same for sale and locating a purchaser thereof, and being paid for his services a commission on the amount involved; that defendants knew that he was engaged in such business and acted as such broker at all times referred to in the petition and during the pendency of the transaction referred to in the petition; that Laurent Land Company, a corporation, prior to and at the times referred to, owned a large tract of land located in Walker County, Georgia, and more particularly described; that one Henry DeGive, of Atlanta, was a large stockholder and officer in said land company; that Laurent DeGive was also a large stockholder and officer in said corporation, and before his death their father was also a large stockholder and officer therein; that petitioner knew that said lands belonged to said corporation, and knew that the land company was largely controlled by the DeGive family, and prior to the times complained of petitioner had talked with DeGive Sr. in reference to the possible sale of said lands, and thereafter petitioner had certain conversations with the said Henry DeGive and Laurent DeGive in reference to the sale thereof; that for approximately two years prior to the time in question, defendant Roy A. Thurman, knowing the business of petitioner and that he had certain contacts with the DeGive family, had mentioned to him the possible purchase of said land, stating that he and others were interested in the purchase of the same, stating that if petitioner could get a purchase-price fixed for which Laurent Land Company would sell, he and others would be interested therein; that, following said conversations, petitioner went to Atlanta and had a conference with Henry DeGive and Laurent DeGive in reference to the possible sale of said lands and the purchase-price thereof; that thereafter Henry DeGive called petitioner from Atlanta by long distance telephone, stating that they were in position to sell said lands and that the purchase price would be $150,000 net to them, meaning thereby that they would pay no commissions or expenses attending the sale of the same; that this was on September 24, 1948, and that immediately thereafter he called the defendant Roy A. Thurman, by long distance telephone, stating to him that he had a price on said lands of $150,000 net and the said Thurman asked petitioner what he would expect as his commission in connection with said matter and your petitioner informed the said Thurman that if ten persons purchased said lands he would expect a one-eleventh interest therein without cost to him and to be in full payment of his services; that said Thurman told petitioner to meet him and others in LaFayette, Georgia, the next afternoon at 5 p. m. for the purpose of further discussion of the purchase of said lands; that on the next day he met with the defendant Roy A. Thurman, and the defendants W. T. Rhyne, Horace Shattuck, S. B. Kitchens, and S. M. Chapman in the office of G. W. Langford, an attorney at law, where there was an extended discussion in reference to the purchase of said lands, and certain discussion in reference to the commissions to be paid to petitioner, but that no agreement was reached in reference thereto; that after said conference had ended, the defendant W. T. Rhyne told petitioner that the said Henry DeGive was present in LaFayette and further stated to petitioner to let him, the said W. T. Rhyne, handle the transaction with Mr. DeGive; that he could buy the land for less money than $150,000, and told petitioner that "we will take care of your commission"; that with this assurance petitioner withdrew from further negotiations with Mr. DeGive and left the same to the defendant W. T. Rhyne; that at said conference in the office of G. W. Langford, those present requested petitioner to check with Mr. Walter B. Shaw, an attorney at law, of LaFayette, Georgia, in reference to the title to said lands, and he did check with the said Shaw in reference thereto and as a result thereof assured them that the title of Laurent Land Company was good; that on the following day defendant W. T. Rhyne called petitioner over long distance telephone at his home in Dalton, Georgia, and in the conversation stated that he had broken the price $10,000 and again assured petitioner that he would get his commission in connection with said transaction; that he heard nothing further from said matter directly until approximately two weeks thereafter when he was informed that the defendants had bought all of the stock of the Laurent Land Company for the sum of $125,000, and in this way consummating the deal and purchasing the land in question; that he shows upon information and belief that the only assets of said Laurent Land Company were the lands described in the petition as belonging to it, and that the purchase of the stock in said corporation was in effect the purchase of said lands; that he alleges further upon information and belief that said stock was so transferred to said defendants on or about October 4, 1948; that as a part of said transaction, on or about October 30, 1948, Laurent Land Company, acting by and through defendant A. S. Fortune, as president, and defendant R. A. Thurman, as secretary, conveyed said lands to said ten defendants, thus putting title to said lands in said defendants; that each and every act described and set forth was for the use and benefit of all of said defendants, and that said defendants are bound by each and every act of the said W. T. Rhyne and Roy A. Thurman and others acting in their behalf; that petitioner was the procuring cause of said sale, and that said defendants accepted each and every service rendered by him in reference thereto, and that said defendants sought and requested his services in said matter and that the same were rendered in accordance with the facts and circumstances above set forth; that, had he not been told that his commissions would be taken care of and paid by the defendants, he would have proceeded in said matter to its conclusion, and if necessary have sought other purchasers for said lands; that on account of his said services he had earned his commission and that his efforts as such real-estate and timber broker were the efficient cause of the purchasing of said lands by said defendants; that a reasonable compensation for services in a matter of this kind and character by a real-estate broker is 10% of the purchase price and that he is entitled to said amount, $12,500, for his services so rendered. Defendants filed a general demurrer and numerous special demurrers to the petition which the court overruled and defendants except.
1. The plaintiffs in error contend that under Code (Ann.) § 84-1413, which reads, "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," plaintiff's petition is subject to general demurrer because he does not allege therein that he was a licensed real-estate broker. This contention is without merit. The act of 1943 (Ga. L. 1943, pp. 572, 573, 574), codified as § 84-1401 (Ann. Supp.), which was the law effective upon the subject at the time the plaintiff's cause of action arose, recited that the Code, Ch. 84-14, was applicable only in counties having a population of 75,000, or more, according to the United States census of 1920 or any future census. This court will take judicial notice that the 1940 United States census showed the population of Walker County to be 31,024. Lanier v. Richmond County, 203 Ga. 43 ( 45 S.E.2d 415). Therefore, it was not necessary for the plaintiff to allege that he was a licensed real-estate broker. A statute will always be interpreted so as to operate prospectively, and not retrospectively, unless the language of the legislature is imperative ( Bank of Norman Park v. Colquitt County, 169 Ga. 534, 150 S.E. 841); thus the act of 1950 (Ga. L. 1950, pp. 278, 279, 280), amending Code § 84-1401, not being retrospective, does not affect the plaintiff's cause of action.
2. The defendants construe the plaintiff's petition to be an action for recovery of broker's commission for services rendered while acting as broker for the old Laurent Land Company or DeGive. Most of the defendants' special demurrers were worded along the line of such contention. We do not entertain such a view of the petition. A proper construction of the petition shows that the plaintiff is suing for services rendered to the defendants as their representative rather than that of the old Laurent Land Company or DeGive. Among others lending support to this construction of the petition is the allegation, "He shows further that he was the procuring cause of said sale, and that said defendants accepted each and every service rendered by him in reference thereto, and said defendants sought and requested his services in said matter and that the same were rendered in accordance with the facts and circumstances above set forth." The plaintiff alleges that his services were sought by the defendants to try to effect a purchase of the described lands owned by the Laurent Land Company; that he rendered certain valuable services accepted by the defendants in an effort to secure said lands for them; that after rendering certain services he was requested by certain of the defendants to hold off his negotiations with the owner of said lands; that soon thereafter the defendants bought the stock of Laurent Land Company, the assets of which, the plaintiff believes, consisted solely of the lands described; that later said lands were conveyed by the new Laurent Land Company to the defendants; that therefore a purchase by the defendants of the stock of Laurent Land Company was essentially a purchase of the lands described; that the plaintiff was the procuring cause of the purchase. The petition stated a good cause of action and was good as against a general demurrer. Evidence under the petition may be introduced to authorize a finding that the plaintiff's efforts and services were the procuring or efficient cause of the purchase and that the purchase of the stock of the Laurent Land Company by the defendants and a conveyance of the lands by the new Laurent Land Company to the defendants, under the circumstances, amounted to a conveyance of the lands directly to the defendants. The petition in the case of Erwin v. Wender, 78 Ga. App. 94 ( 50 S.E.2d, 244), alleged that the plaintiff, a real-estate broker, was informed by the defendant that he desired to purchase investment property in the vicinity of Atlanta and that he could pay around $200,000 therefor; that he requested the plaintiff to locate such a piece of property for him; that pursuant to such request, the plaintiff, about June 1, 1947, contacted Ben Massell, vice-president of Pinegrant Corporation, and told him that he had a client who desired to purchase a piece of investment property in the $200,000 class and Massell listed with the plaintiff the property in question, for sale at $200,000 net to owner, the purchaser to pay the real-estate commission in addition; that the plaintiff secured all necessary information about the property, prepared a "set-up" of same, showed this to the defendant, and explained to him that the price of $200,000 was to be net to the owner and that the purchaser would have to pay the real-estate commission on the sale, in addition to the price stated; that the defendant indicated that he was interested in the property, took and retained the "set-up" of the property prepared by the plaintiff, and shortly thereafter, through a corporation, principally owned and controlled by the defendant and organized by him on June 11, 1947, for the purpose of buying the property, the defendant purchased the property in question from the owner for $195,000, falsely and fraudulently representing to the owner that no real-estate agent was involved. The trial court sustained a general demurrer to the petition and dismissed the action. Upon an appeal this court reversed the lower court saying that it plainly appeared from the petition that the alleged services of the plaintiff in connection with the property were performed by him at the request of the defendant and was accepted by defendant, and quoting Code § 3-107 to the effect: "Ordinarily, when one renders services or transfers property valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof." The court further said that a jury would have been authorized to find from the allegations of the petition, if sustained by the evidence, that the plaintiff was the procuring cause of the sale of the property in question to the defendant, or his corporation organized for the purpose of taking title to the property; that the fact that the corporation organized by the defendant for such purpose bought the property did not affect the plaintiff's right to recover for the services performed by him and accepted by the defendant and that as the defendant sought and requested the services of the plaintiff, he could not then form a corporation and purchase the property through it directly from the owner so as to defeat the plaintiff's right to compensation for his services. That case is almost analogous to the instant case and the principles announced there are applicable and controlling in this case. See also Williamson v. Martin-Ozburn Realty Co., 19 Ga. App. 426 ( 91 S.E. 510). The contention by the plaintiffs in error that Erwin v. Wender, supra, hinged on the false and fraudulent representation of the defendant to the seller that no agent was involved is without merit. Such a representation merely afforded additional support for the theory that the services were rendered under circumstances obligating the purchaser to pay therefor.
2. A demurrer, being a critic, must itself be free from fault. Katz v. Turner, 49 Ga. App. 81 ( 174 S.E. 167). A demurrer which merely recites that a paragraph of the petition is vague, indefinite and uncertain is itself vague, indefinite and uncertain. The following special demurrers are bad because of vagueness: 3(a); 4(a); 6(a); 7(a), (b) and (c; 8(a), (b) and (c); 9(a) and (b). Special demurrers 2; 3(b), (c) and (d); 4(c); 5; 6(b) and 9(b) are without merit under the construction put on the petition by the court. Special demurrers 4(b) and (d) are without merit.
The court did not err in overruling the demurrers.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.