Stallworth v. Martin-Ozburn Realty Co. , 17 Ga. App. 689 ( 1916 )

Broyles, J.

1. As to real property jointly owned by two or more persons, section 3587 of the Civil Code should be construed to read as follows: “The fact that property is placed in the hands of a broker to sell does not prevent the owners from selling, unless otlienvise agreed. The broker’s commissions are earned when, during the agency, he finds a purchaser ready, able, and willing to' buy, and Avho actually offers to buy on the terms stipulated by the oioners.” See Rol. Code, sec. 4, par. 4.

2. Where a real-estate agent sued for commissions for having found a purchaser ready, able, and willing to buy, and Avho actually offered to buy, on the terms stipulated by the defendant, property in which the defendant owned an interest, and Avliere the petition, construed most strongly against the pleader, showed that the defendant Avas not the sole owner of the land, but had only an interest therein, and that this fact was known to the plaintiff before he did any work or Avas put to any expense, and that the purchaser found by him was never accepted by the defendant, and that no sale of the property Avas ever consummated, and where the petition failed to sIioav that the defendant represented to the plaintiff that he Avas acting as agent for the other OAAmer of the property, or that the latter had agreed to the terms of the contract between the plaintiff and the defendant, or that the defendant had any authority to bind the other OAvner, or that the plaintiff himself had any agreement with that OAvner, or that the other OAvner had eA'er agreed to or ratified the terms of the contract between the plaintiff and the defendant, or that the sale fell through by reason of the fault of the defendant: Ilelcl, that the trial judge of the municipal court of Atlanta, in the first trial of the case, properly dismissed the petition as setting forth no cause of action, and that the appellate division of the same court erred in reversing that judgment and in granting a new trial. See McKinnon v. Hope, 118 Ga. 462 (45 S. E. 413); McLendon v. Seidell, 140 Ga. 74 (7S S. E. 410); Truitt v. Ansley, 12 Ga. App. 329 (77 S. E. 200). Judgment reversed.