Friedman v. Ware , 17 Ga. App. 677 ( 1916 )

Wade, J.

1. The contract sued on was unilateral and non-enforceable. In it the owner appointed agents and authorized them to sell his property, agreeing to pay a certain per'centum for the service, if the property should he sold by himself, or by the said agents, or by any one else, within 60 days from the date of the contract. The agents did not therein undertake to make a sale of the property, or even to attempt to negotiate such a sale, or to do anything whatsoever for the other party to the contract. “Where mutual promises are relied upon as a consideration to support a contract, the obligations of the contract must be mutually binding upon the respective parties; and if one assume under such an agreement to do a special act beneficial to another, and that other under the terms of the contract is under no obligation to perform any act of corresponding advantage to the former, the agreement is without such consideration as will support the promise of the party assuming to perform.” Morrow v. Southern Express Co., 101 Ga. 810 (28 S. E. 998).

(a) Though the contract recites that it was entered into by the owner “for value received,” this expression is a patent ambiguity and may be explained and an entire want of consideration shown by parol (Pitts v. Allen, 72 Ga. 69 (2); Sims v. Scheussler, 5 Ga. App. 850, 858 (64 S. E. 99); Seawright v. Dickson, 16 Ga. App. 436 (85 S. E. 625) ), and under the evidence there was no consideration whatever to support the same. See also Swan Oil Co. v. Linder, 123 Ga. 550 (51 S. E. 622); Lucas v. Southern Railway Co., 130 Ga. 606 (61 S. E. 404), and cases cited.

2. There was no such definite and precise evidence of any such partial performance of the contract by the agents as would supply a consideration sufficient to support the contract; and the agreement being purely voluntary, the principal had the right to revoke the agency by parol at any time before the sale was consummated. See, in this connection, Brandon v. Pritchett, 126 Ga. 286, 287 (55 S. E. 241, 7 Ann. Cas. 1093), and dissenting opinion (p. 290); also same case, 133 Ga. 480 (66 S. E. 247).

3. The appellate division of the municipal court of Atlanta therefore erred in overruling the motion for a new trial. Judgment reversed.

From the evidence it appears that on September 23, 1914,. the defendant sent to the plaintiffs a letter, in which he said: “I hereby withdraw my listing with you on the sale of my grocery business located at No. 80 Capitol Avenue, City, and I ask that you cancel my sale contract and not offer said business for sale until further notice.” On ,the same day he signed in his wife’s name a contract for the sale of the same business to A. O. Nunnally, and on September 29 the sale was consummated. B. B. Braswell testified: “I am connected with the firm of Ware & Harper. I negotiated this contract with J. H. Friedman. . . He came in the office and stated that he wanted to list the property for sale, and I filled out this blank contract and handed it to him, and he signed it. There was no cash consideration. The consideration of the contract was services which we performed and the expense of advertising. I performed services on the 21st day of September. I carried a man out there to look at the business. Mr. Friedman did not seem much interested, and when I asked him about the matter he stated that he would let me know tomorrow whether he would sell it or not, and the next day we received his letter dated September 23, attempting to withdraw the proposition from us, but we declined to consent to the withdrawal.” W. J. Harper, a member of the plaintiff firm, testified: “We made an effort to sell the business mentioned in the contract. I considered it a good proposition, and talked about it in the office to a great many people. We did not sell the business, and had nothing to do with its sale. . . We advertised the business for sale in the paper, and here are some of the advertisements we ran.” The' plaintiffs introduced in evidence an advertisement for the sale of a “fancy grocery store,” published in an Atlanta newspaper on September 7th and 9 th, 1914.

Mayson & Johnson, Alvin L. Richards, for plaintiff in error,

cited: Civil Code, §§ 4222, 4241; 101 Ga. 810; 110 Ga. 146; 110 Ga. 366; 115 Ga. 7; 119 Ga. 6, 153; 121 Ga. 311, 714; 123 Ga. 554, 707; 130 Ga. 265, 606; Civil Code, § 3575; 1 Clark & Skyles on Agency, §§ 157, 159; 38 Cal. 550; 103 Mo. 76; 8 Wheat. 203; 126 Ga. 293.

Moore & Pomeroy, W. P. Coles, contra,

cited: 86 Minn. 376 (90 N. W. 780); 136 Wis. 332 (117 N. W. 851); 115 Ill. App. 226; 118 Mo. App. 672; 89 Ark. 412 (117 S. W. 246); 135 Cal. 589; 19 Cyc. 264; 38 Cal. 550; 126 Ga. 293; 28 Ga. 165; 72 Ga. 69; 14 Ga. 649; 12 Ga. 52; 27 Ga. 567; 137 Ga. 63; 12 Ga. App. 237 (2), 240; 8 Ga. App. 99; 9 Ga. App. 848; 123 Ga. 554.