One may, however, contract to sell property not owned by himself, taking his chances on obtaining title prior to the date of consummation of the sale or responding in damages if he fails to do so. "`Whether or not the seller could have delivered good title on the closing date is not a question which addresses itself to the validity of the contract.' Goldgar v. North Fulton Realty Co., 106 Ga. App. 459, 460 ( 127 S.E.2d 189); Roberts v. J. L. Todd Auction Co., 120 Ga. App. 444, 445 ( 170 S.E.2d 862)." Williams v. Bell, 126 Ga. App. 432, 434 ( 190 S.E.2d 818) (1972).
His inability to convey a good title to the whole of the fee because his wife owned a one-half undivided interest which she would not convey does not affect the validity of his contract to convey a good and merchantable title to the whole fee or relieve him from liability for damages for his failure to do so. Goldgar v. North Fulton Realty Co., 106 Ga. App. 459 ( 127 S.E.2d 189); Roberts v. J. L. Todd Auction Co., 120 Ga. App. 444 ( 170 S.E.2d 862); Higgins v. Kenney, 159 Ga. 736 ( 126 S.E. 827); Barnett v. Adams, 164 Ga. 18 ( 137 S.E. 554). This is true even though specific performance would lie only as to the one-half undivided interest vested in the seller.
Northington-Munger-Pratt Co. v. Farmers Gin c. Co., 119 Ga. 851 ( 47 S.E. 200, 100 ASR 210); Sanders v. Allen, 135 Ga. 173 ( 68 S.E. 1102); Broadwell v. Kiker, 28 Ga. App. 279 ( 111 S.E. 62). "Whether or not the seller could have delivered good title on the closing date is not a question which addresses itself to the validity of the contract." Goldgar v. North Fulton Realty Co., 106 Ga. App. 459, 460 ( 127 S.E.2d 189); Roberts v. J. L. Todd Auction Co., 120 Ga. App. 444, 445 ( 170 S.E.2d 862). Accordingly, we hold the absence of title at the time of the making of the contract does not provide the basis for a fraudulent conversion. The motion to dismiss Count 1 as failing to state a claim for relief should have been sustained.
Under these circumstances the real estate agent would be entitled to his commissions under the terms of the contract. Goldgar v. North Fulton Realty Co., 106 Ga. App. 459 ( 127 S.E.2d 189); Roberts v. J. L. Todd Auction Co., 120 Ga. App. 444 ( 170 S.E.2d 862). The grant of the defendant's motion to dismiss on the ground that the complaint failed to state a claim on which relief could be granted was error.
Moreover, no reason for interpreting the identical contractual language differently, depending upon whether the agent is an auctioneer or a real estate broker, has been suggested to us. Rountree v. Todd, 210 Ga. 226, 78 S.E.2d 499 (1953); Roberts v. Todd, 120 Ga. App. 444, 170 S.E.2d 862 (1969). Shopen v. Bone, 328 F.2d 655 (8th Cir. 1964), applying Missouri law.
In the absence of restrictive terms in the auctioneer's listing contract, the commission is earned, not by a consummated sales contract, but by the auctioneer's procurement of a bona fide bid acceptable to the owner. Rountree v. Todd, 210 Ga. 226, 229, 78 S.E.2d 499 (1953); Roberts v. Todd, 120 Ga. App. 444, 170 S.E.2d 862 (1969). This conclusion is especially compelled when the accepted bid results in the making of an executory binding contract by which the realty is to be sold to a purchaser obtained by the auctioneer.