Opinion
41797.
ARGUED FEBRUARY 7, 1966.
DECIDED APRIL 5, 1966.
Action on contract. Fulton Civil Court. Before Judge Williams.
Fine Rolader, A. J. Block, Jr., for appellant.
Huie, Etheridge Harland, W. Stell Huie, for appellee.
1. The only contentions of the appellant on this appeal are that the contract sued on is too vague and indefinite to be enforced, that it lacks mutuality and consequently is unenforceable, and that the petition fails to allege facts showing that the defendant acted in bad faith so as to entitle the plaintiff to a judgment for the expenses of litigation and attorney's fees. Insofar as the first two contentions are concerned this case is controlled adversely to those contentions by the principles enunciated in Spindel v. National Homes Corp., 110 Ga. App. 12 ( 137 S.E.2d 724). As was there said: "While a promise may be a mere nudum pactum when made because it is lacking in mutuality, it may become binding on the promisor when the promisee furnishes the consideration contemplated by the promise. . . The test of mutuality in contracts is to be applied at the time the contract is to be enforced, and if the promisee has accomplished the object contemplated by the promise or offer by doing what was contemplated, thereby the promise is rendered valid and binding. Retailers Service Bureau v. Newman, Frierson c. Co., 40 Ga. App. 185 (2) ( 149 S.E. 89)." There is a distinction between a contract made by the giving of a promise for a promise which must, in order to be enforceable, be mutually binding, and a contract effected by an offer which the offeror contemplates may be accepted by the doing of some act, in which latter case the offeror does not become bound to perform his part of the bargain until the offer has done the thing intended to be done as an acceptance. The contract alleged in this case is clearly of the latter class. The contract sued on in this case, having been performed by the plaintiff, was neither so vague and indefinite nor so lacking in mutuality as to be unenforceable, and the trial judge did not err in overruling the general demurrers.
2. With respect to the other contention of the appellant, the case of Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 111 ( 115 S.E.2d 852), controls. As was there said, in effect, bad faith involves actual or constructive fraud or a design to mislead or deceive another, or a neglect or a refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake, but prompted by some sinister motive. The allegations of the petition with respect to the acts of the defendant in concealing from the plaintiff the fact that a commission had been received from the sale in question would, if proved, authorize a jury to infer that the defendant acted from an interested motive not prompted by an honest mistake as to his rights, and that in so concealing from the plaintiff the fact that a commission had been earned on the sale he had a design to mislead or deceive the plaintiff so as to avoid an existing contractual obligation to the plaintiff, and that such acts amounted to an actual or constructive fraud on the plaintiff.
3. The court did not err in overruling any of the grounds of demurrer.
Judgment affirmed. Felton, C. J., and Pannell, J., concur.
ARGUED FEBRUARY 7, 1966 — DECIDED APRIL 5, 1966.
In this case the petition as amended alleged in count 1 that the plaintiff and defendant entered into an oral contract of employment by which the plaintiff was to sell real estate for the defendant real estate broker and was to receive no salary for such services but was to receive 50 percent of the commissions on all sales and leases in which he participated, either by listing the property, drawing the contract, or showing the property to a prospective purchaser who subsequently purchased it; that in 1962 petitioner participated in the sale of certain property in DeKalb County, on which there was paid to the defendant a commission of $12,500; that such participation on the part of the plaintiff consisted of initially taking the person who later purchased the property to see it, of having conferences with him and his attorney, and in participating in certain other negotiations which finally resulted in the closing of the transaction; that upon the closing the defendant advised petitioner that it would be unnecessary for him to attend; that petitioner did not attend the closing; that thereafter the defendant informed petitioner that in order to make the deal he had to agree to receive no commission on the transaction; that such representation was untrue and was made in bad faith for the purpose of depriving petitioner of his rightful share of the commission; that in fact defendant received a commission of $12,500, and that petitioner is entitled to one-half of that amount, plus interest and expenses of litigation and attorney's fees in the amount of $3,000, on account of the defendant's bad faith in the transaction. In count 2 petitioner alleged substantially the same facts, but based his right to recover therein on quantum meruit, or the reasonable value of his services in procuring the purchaser of the property. The defendant filed general and special demurrers; the plaintiff twice amended his petition, and the defendant on each occasion renewed his demurrers and filed additional grounds of demurrer. The trial court overruled the demurrers, and the defendant has appealed from that judgment.