Opinion
37499.
DECIDED JANUARY 19, 1959.
Action for commissions. Fulton Civil Court. Before Judge Etheridge. October 20, 1958.
Mildred L. Kingloff, Sylvia Levitt, for plaintiff in error.
Sam G. Dettelbach, contra.
Where a contract for the sale of realty is contingent upon the property being zoned for business, and no time is specified for such requirement to be met, the time in which the zoning was perfected in the instant case is not an unreasonable length of time and the defendant can not avoid obligation for this or any other reason shown by this record.
DECIDED JANUARY 19, 1959.
W. H. Pitts, d/b/a Hamilton Pitts, brought suit against Evelyn Lee Smith, alleging that the defendant was indebted to him $1,550 for sales commissions on a contract to purchase property. The court rendered judgment for the plaintiff, whereupon the defendant filed a motion for a new trial, which motion was denied, and it is on this judgment that the case is here for review.
The petition shows substantially as follows: Paragraph 1 alleges jurisdiction. Paragraph 2 alleges that the defendant is indebted to the plaintiff in the amount of $1,550. Paragraph 3 alleges that the plaintiff is a real-estate broker licensed to do business in the State of Georgia and was so licensed on June 6th and 7th, 1957. Paragraph 4 alleges that on June 7, 1957, the plaintiff's agent, W. M. Brownlee, negotiated a contract for the sale and purchase of real estate known as and located at 754-756 Piedmont Avenue, N.E., Atlanta, Georgia, with the defendant as buyer and one Richard L. LaCroy as seller, and said contract was attached as Exhibit "A". Paragraph 5 alleges that pursuant to said contract the plaintiff received a check executed by the defendant in the amount of $1,000 as earnest money. Paragraph 6 alleges that one of the provisions of said contract was as follows: "This sale subject to zoning on property being changed from A-1 to commercial or business. If zoning isn't changed to where it can be used for business purposes this contract will become null and void." Paragraph 7 alleges that an ordinance changing said property to C-1, community business district, was adopted by the board of aldermen on September 14, 1957, and approved by the Mayor of the City of Atlanta on September 18, 1957. Paragraph 8 alleges that on September 19, 1957, the plaintiff notified the defendant by letter of the said zoning, furnishing her a copy of the zoning ordinance, copy of said letter being attached as Exhibit `B'. Paragraph 9 alleges that subsequently to said approval dated September 18, 1957, and notice to the defendant dated September 19, 1957, the defendant's $1,000 check payable to the plaintiff was presented for payment at the Fulton National Bank upon which the check was drawn, and the check was refused, being marked `payment stopped'. Paragraph 10 alleges that one of the provisions of the contract was as follows: "Closing of sale shall not be more than 30 days from date zoning is changed if favorable." Paragraph 11 alleges that the defendant has failed and refused to consummate the sale as provided in the contract and has not notified the plaintiff of any lack of marketable title in the seller.
Paragraph 12 alleges that said contract provides: "If sale is not consummated, due to default of buyer, seller shall not be obligated to pay commissions but buyer shall pay said commissions." Paragraph 13 alleges that the contract provides: "In negotiating this contract agents have rendered a valuable service and seller agrees to pay agents commission in accordance with the schedule printed on the reverse side hereof. If sale is not consummated, due to default by buyer, seller shall not be obligated to pay commissions but buyer shall pay said commissions." Paragraph 14 alleges that the schedule on the reverse side of said contract, as referred to in paragraph 13, is as follows: "A. In city limits (or within metropolitan area). Improved or vacant property, charge 5% on first $25,000, and 3% on balance." Paragraph 15 alleges that as shown in said contract sales price is $35,000 and 5% of the first $25,000, of $1,250 and 3% of the remaining $10,000 is $300, or a total of $1,550. Paragraph 16 alleges that the plaintiff has received no part of the $1,550 commissions due, that he is holding no funds or monies of the defendant, and he prays judgment in the amount of $1,550 principal plus interest and court costs.
The defendant answered substantially as follows: Paragraph 1 admits paragraph 1 of the petition. Paragraph 2 denies paragraph 2 in that the defendant alleges that she is not indebted to the plaintiff in any sum whatsoever. Paragraph 3 alleges that a period of time over three months had elapsed from the date of the sales contract from June 6, 1957, to September 18, 1957, at which time the said rezoning of the property in question was approved. The defendant alleges that the plaintiff made previous attempts to rezone said property, which were refused; and after failure to secure proper rezoning necessary to the defendant's requirements, she was forced to look elsewhere and to terminate any tentative agreement with the plaintiff. Paragraph 4 alleges that the plaintiff requested from defendant a renewal of the original agreement after failure to secure rezoning; that said renewal was never forthcoming and the plaintiff proceeded at his own risk without authority or permission. Paragraph 5 alleges that the defendant is not indebted to the plaintiff in any sum whatsoever and prays to have the action against her dismissed.
The evidence shows substantially as follows:
Robert Paddison, assistant cashier at the Fulton National Bank, identified a check dated June ** 1957, in the amount of $1,000 payable to Hamilton Pitts, signed by Mrs. Jerome N. Smith showing a notation of payment stopped October 14, 1957.
George W. Bryan, Jr., an employee of the Atlanta Federal Savings Loan Association, testified that he handled a loan application on the property in question for the defendant dated October 2, 1957. On cross-examination the same witness testified that he was acquainted with the defendant, having done business with her over a long period of time; that he talked with her on the telephone, taking down the information about the property; that she did not sign the loan application; that he sent the appraiser out to look at the property and take pictures of it in order to determine the maximum loan that his company could make on the property; that their loan committee approved a loan which was not large enough to pay off the first loan that was against the property and therefore the defendant's application for a loan did not go through.
The plaintiff testified that he is a licensed real-estate broker and identified the contract in question and the letter witness wrote to the defendant advising her that his firm had complied with the terms of the contract; that the property had been zoned for business and that they were ready to close the contract. The witness testified further that he himself had no discussion with Mrs. Smith concerning the matter but that the purchase was carried on through his representative, Mr. Brownlee, and he identified the defendant's check and certified copy of the ordinance changing the zoning of the property in question and testified concerning the contracted commission he was due to receive. On cross-examination the plaintiff testified that there was no time limitation set out in the contract concerning the rezoning; that the witness knew of no subsequent contract drawn up for the defendant to sign; and that at no time did the defendant request that he return her check or was he advised of such by any agent or salesman.
W. M. Brownlee, agent of the plaintiff, identified the check which he received from the defendant upon the execution of the sales contract in question and testified that at no time did the defendant ask the return of the check; that when the request for rezoning was being considered by the zoning committee and said committee advised the agent that they wished to consider rezoning other property along with the property in question and the witness contacted the defendant to ask her if she wanted another contract and she said they would just continue under the same contract and she did not ask the return of her check. The witness testified that, after the rezoning of the property in question went into effect, he drew up another contract and offered it to the defendant in an effort to cooperate with her so that she would have time in which to raise the money to consummate the deal; that the defendant never did tell the witness that she was not going through with the sale and that four days before the expiration of the closing date the defendant stopped payment on her check.
The defendant testified substantially that she owns a few beauty shops in the City of Atlanta; that her property on 10th Street was being taken by the city and she was in the market for a new location and she entered into a contract with the plaintiff on property which was not zoned for business; that she had been dealing with Atlanta Federal Savings Loan Association for some 28 to 30 years and relied on them to handle her properties; that she requested that they make an appraisal of the property in question; that she did not apply for a loan. She further testified that the agent of the plaintiff advised her that the rezoning of the property in question would require six to eight weeks; that when the rezoning was completed he called the defendant and told her it did not get zoned and that he had a new contract he would like her to sign; that the agent and the plaintiff Pitts came out to her salon on McDonough Boulevard but she was busy and they left the contract; that at a second meeting at her 10th Street store the agent Brownlee explained to the defendant and one of her real-estate agents, a Mr. Brothers, that the lawyer representing his firm had said the first contract was not good and they needed a new contract; that the defendant's agent Brothers advised her at that time not to sign the new contract and she asked the plaintiff's agent Brownlee to mail her check back to her; that Brownlee was drinking heavily at the time and probably does not recall any of the conversation but that he stated that they would not return it; that they were going through with the contract. She further testified that she had received many phone calls late at night from the agent Brownlee and had requested that he stop annoying her and contact her agent Brothers, and that she had advised the plaintiff and his agent as well as the owner that she could not wait any definite length of time for the rezoning of the property, and that the owner had stated to her that the plaintiff and his agent were out of the matter and she could deal directly with him. On cross-examination the same witness testified that she had demanded that the check be returned; that the agent was drinking heavily and said that he would not return it, and she promptly stopped payment on the check.
Harold T. Brothers, a licensed real-estate broker, testified that he had been employed by the defendant to represent and advise her regarding the purchase of various properties and was present with her at the meeting with the plaintiff's agent; that he examined the new contract offered by the plaintiff and, although he found nothing wrong with it, he advised her that if she did not want to purchase the piece of property, not to sign it; that the agent Brownlee's conduct had nothing to do with his advice to his client.
This case is here on the general grounds only. It appears from the record that the contract of sale signed on June 8, 1957, was contingent upon the property involved being zoned for business. The paragraph regarding this contingency reads as follows: "This sale subject to zoning on property being changed from A-1 to commercial or business. If zoning isn't changed to where it can be used for business purposes this contract will become null and void." There was no time specified for the rezoning to be done. The plaintiff did get the rezoning done on September 14, 1957. From the time the contract was signed to the time the rezoning was done the plaintiff held a check for $1,000 given by the defendant when the contract was signed. On September 19, 1957, the defendant was notified that the zoning for business had been accomplished. Subsequently, the check for $1,000 was presented to the bank for payment and payment was refused, the check being marked "payment stopped". The defendant refused to go through with the contract.
Counsel for the defendant contend that inasmuch as the household furnishings which were to go with the property were not described in detail, the case should be reversed because of insufficient description. Counsel cite a number of cases where contracts for the sale of realty were not enforced because the description was not sufficient. However, all of the cases cited except one pertain to insufficient description of the real property and not personalty which might go with the property. Counsel cite Ferguson v. McCowan, 124 Ga. 669 ( 52 S.E. 886) in support of the contention that the personal property should have been described specifically. In that case only certain articles of personalty went with the property and there were many other articles of personalty scattered around with the ones to go with the property. In the instant case all the household furnishings on the second floor went with the property and certain described personal property which was located on the first floor also went with it. Therefore no confusion arises and lack of specific description of the personalty does not show reversible error in the case now before us.
Counsel for the defendant cite Crawford v. Williford, 145 Ga. 550 ( 89 S.E. 488) wherein terms of payment were not sufficiently shown in the contract. In the instant case the contract specifies payment as follows: "The purchase price of said property shall be $35,000 to be paid as follows: $7,000 cash at time of closing sale, and assume a first loan in favor of DeKalb County Federal Savings Loan Association with a balance of approximately $14,000, payable $125 per month; seller agrees to carry a second loan of approximately $123.38 per month with the interest rate of 6 percent." We think that the terms of payment were sufficiently explicit so that no reversible error is shown.
It has been held many times that, where a case proceeds to trial without special demurrers having been filed pointing out defects and thus giving the trial court and the plaintiff a chance to act on such demurrers in some way, such defects can not be the basis of consideration for the first time by an appellate court in a bill of exceptions. This is a correct principle of law. Citation of authority is not necessary particularly since counsel for the defendant concede this to be the law. The trial judge, sitting without a jury, determined the merits of the case on the general grounds in favor of the plaintiff and against the defendant. The evidence is sufficient to sustain this decision.
Judgment affirmed. Townsend and Carlisle, JJ., concur.