Latimer v. Gifford , 37 Ga. App. 1 ( 1927 )

Jenkins, P. J.

Gifford sued P. B. and W. D. Latimer for broker’s commissions, in two counts, alleging in the first count that the defendants agreed to pay him a lump sum of $500 if he would find a purchaser for described timber who would buy it at an agreed price of $8000, $3000 to be paid in cash and the balance to be settled in annual deferred payments. This count alleges that the plaintiff did actually procure and present a customer ready, able, and willing to buy‘the timber at the price and on the terms specified, but that the defendants thereupon declined to consummate the sale in accordance with the contract of listment. The second count alleges that defendants agreed to pay to the plaintiff the usual real-estate commission, alleged by the petition to be five per cent, of the purchase-price of the timber in the event the plaintiff procured a purchaser therefor at such price and on such terms as the defendants might accept; that the plaintiff procured and presented a purchaser who made an acceptable offer, and that the defendants pretended to decline to accept the offer, but did in fact secretly accept it, and thereafter consummated a sale directly with the plaintiff’s customer, in order that the plaintiff might be defrauded out of his commissions, which he alleges he thus became entitled to in the sum of $400. Neither count of the petition was demurred to. The jury found in favor of the plaintiff on the second count in the sum of $400. Exception is taken by the defendants to numerous alleged errors in the charge of the court.

Counsel on both sides assume in their briefs that the second count is a suit on a quantum meruit. From the evidence of the plaintiff it appears that a contract of listment such as is set forth in the first count was entered into with him by the defendants on or about June 1, 1922, and that about the middle of September he procured a customer for the timber at the price authorized by the contract of listment, to wit $8000, and on the terms set forth therein, and that when he submitted the customer’s offer the defendants declined to consummate the trade, stating that they no longer desired to dispose of the property at the price listed, inasmuch as the value of the timber had advanced. The plaintiff further showed that at a period of about two months subsequent to the time when such proposition was made to and declined by the defendants, the defendants effected a sale of the timber with the person thus procured by the plaintiff, at a price of $9000. The defendants admitted having made a contract with the plaintiff such as was set forth in the first count of the petition, but also contended that on Thursday preceding the Monday on which the plaintiff came to them with the offer they notified the plaintiff that unless a purchaser was found by the following Saturday, the contract listing the property for sale would be considered as terminated. This testimony for the defendants was denied by the plaintiffs. One of the defendants testified also that the customer produced by the plaintiff had already inspected the property with a view to purchasing the same prior to the time that the property had been listed with the plaintiff. One of the excerpts from the charge of the court excepted to is as follows: “I charge you that if you believe from the evidence that defendants employed the plaintiff to sell the property in question, that he had a right to continue his efforts to sell said property until notice was given him that the property had been withdrawn from the market, and that notice, in order to be effective, would have to be given him and not to his prospective 'customer. Notice to the customer would not be notice to him of such withdrawal, and this notice would have to be given him a reasonable time before his agency could be terminated; it could not be captiously or capriciously done, but must be done fairly.”

Judgment reversed.

Stephens and Bell, JJ., concur.