Opinion
41590.
ARGUED OCTOBER 4, 1965.
DECIDED NOVEMBER 16, 1965.
Action for broker's commission. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Saul Blau, for appellant.
Robert G. Young, Edenfield, Heyman Sizemore, for appellee.
The refusal by the defendant owner of offers by the proposed purchasers to buy on terms which varied from those stipulated in the listing agreement does not entitle the plaintiff broker to a commission.
ARGUED OCTOBER 4, 1965 — DECIDED NOVEMBER 16, 1965.
Atlanta Realty Company, Inc. brought an action against L. D. Turner to recover a brokerage commission allegedly due because of the defendant's alleged breach of an exclusive sale agreement by refusing to sell his retail grocery business to a prospective purchaser, Norman Greenberg, secured by the plaintiff, which purchaser was alleged to have been ready, able and willing to buy and to have actually offered to buy said business on the terms stipulated by the defendant in said contract. To the petition the defendant filed general and special demurrers and an answer. The court allowed the plaintiff 20 days within which to amend its petition. The petition was not amended and on May 28, 1965, the court sustained the general demurrer and dismissed the petition. Thereafter, on June 9, 1965, the plaintiff filed a motion to reopen the case, vacate the order of dismissal and allow an amendment to the petition setting forth the written offers of Greenberg. The court granted the plaintiff's motion, allowing the amendment, and overruling the general and special demurrers to the petition as amended, to which judgments the defendant excepts.
Even assuming the court's authority to reopen the case after the end of the term in which it was dismissed and assuming that the exclusive sale contract sued upon was enforceable, the petition as amended was nevertheless subject to the general demurrer. "[W]here, as in the instant case, the action is predicated upon the broker's having procured a buyer ready, willing, and able to buy on terms stipulated by the owner, the proof of an offer by the proposed purchaser to buy on terms not stipulated by the owner will not entitle the plaintiff broker to his commissions. Howard v. Sills Purvis, 154 Ga. 430 (1) ( 114 S.E. 580); Sikes v. Markham, 74 Ga. App. 874 ( 41 S.E.2d 828); Waring v. John J. Thompson Co., 76 Ga. App. 494 ( 46 S.E.2d 364)." Weldon v. Lashley, 214 Ga. 99, 102 ( 103 S.E.2d 385). "Even a slight variation will prevent the agent from recovering." Thornton v. Lewis, 106 Ga. App. 328, 330 ( 126 S.E.2d 869); Schaffer v. Padgett, 107 Ga. App. 861, 862 ( 131 S.E.2d 796).
The contract, after providing various information, such as the name and address of the business and the owner, name of lessee, monthly rental, lease period, value of stock and fixtures, monthly sales, etc., stipulated the following under "Remarks": "$29,000-18,000 cash 11,000 bal. payable $210.82 per mo. to Hussman Acceptance Co. All fixtures in store now used in operation of this business air conditioner included with the exception of ice cream box, meat business is now being operated on monthly basis Mr. Roy Latham pays $150.00 rent. New owner can take over meat business. Help col. help 65.00 week. Total operating expense $100. monthly working on 20% gross."
The first offer to purchase stipulated that the business included "all inventory, merchandise, goods, fixtures, shelves, groceries and beer," and contains the following special stipulations: "1. This contract is made subject to purchaser being able to secure a beer license for the sale of packaged beer at 755 Ponce de Leon Avenue, N.E. [the premises in question]. 2. This contract is made subject to purchaser being able to secure a loan in the amount of $18,000.00. 3. This contract is also subject to purchaser being able to obtain an additional five (5) year lease beyond the present lease period with an increase in rental of $25.00 per month on the new lease period of five (5) years."
The second offer to purchase stipulated that the business included "all fixtures, merchandise, goods, groceries, hardware and produce," and contained the following special stipulations: "1. This contract is made subject to the purchasers being able to secure a package beer license for use at 755 Ponce de Leon Avenue, N.E., Atlanta, Georgia. 2. This contract is made subject to purchasers being able to secure an additional 5 year lease beyond the present lease period with an increase in rental of $25.00 per month on the new additional lease of five years. 3. Seller agrees to maintain an inventory of $6,000.00 at seller's cost up to the time of closing said sale, and transferring ownership of said inventory of $6,000.00 to purchasers at the time of closing said sale. Seller agrees that his actual cost of said inventory of groceries and merchandise shall be the basis on which the transfer of $6,000.00 shall be determined. If said inventory shall be below $6,000.00, purchasers shall take credit against said difference between the actual inventory and $6,000.00 guarantee at the time of closing said sale. If said inventory shall be above $6,000.00 the purchasers shall pay to seller in cash at the closing the additional amount above said $6,000.00. 4. Seller agrees that the fixtures which are to pass to purchasers are all those which are listed in a note from L. D. Turner to Hussman Acceptance Company and in addition includes all fixtures which were located at 755 Ponce de Leon Avenue, N.E., Atlanta, Georgia on November 28, 1964. Seller also agrees that included in said fixtures is the air conditioning system and all knives and meat cutting equipment that does not belong to Roy Latham in the meat department that was owned by L. D. Turner and/or Turner's Food Store on November 28, 1964."
The above offers to purchase contained stipulations which varied materially from the stipulations of the listing agreement. There is no allegation that the defendant had waived such variances and even if there had been, this would have been inconsistent with the fact that the action was brought on the contract as originally executed. The refusal of the offers containing terms varying from those in the listing agreement therefore does not support the broker's action for a commission. The court erred in its judgment overruling the general demurrer to the petition as amended.
Judgment reversed. Jordan and Deen, JJ., concur.