Wilson v. Martin , 73 Ga. App. 82 ( 1945 )

Under the allegations of the petition, the contract construed as a whole, contained no provision for the payment of a commission. The court did not err in sustaining the general demurrer to the petition.

DECIDED OCTOBER 17, 1945. Sam T. Wilson brought a suit against Roy Martin to recover certain commissions alleged to be due him under a contract between the parties. The petition as amended set forth in substance: On October 23, 1941. the parties entered into a finder's contract, as follows: (As certain changes were made in the contract, as insisted upon by Martin before it was signed, which changes the plaintiff alleges have a bearing upon its construction, we shall set forth here the contract as finally agreed upon, inserting in brackets the wording of the contract as originally offered before the interlineations were made and agreed upon by the parties, the words in brackets having been stricken from the contract.) "[a] Whereas Sam T. Wilson has in mind a Theatre Circuit, consisting of [a number of] a certain circuit of theatres or motion picture houses, which the said Wilson has reason to believe is for sale and can be bought at a reasonable figure; now therefore, in consideration of $5 and contemplated benefits to be derived therefrom, the undersigned agrees to pay said Wilson 5 percent of the purchase-price, if purchased by the undersigned, or any organization in which the undersigned is interested, payable over the period of five years or 1 percent per year, the first 1 percent to become payable on closing the purchase, which may be handled by either the undersigned directly or by said Wilson or by them jointly at the option of the undersigned. [b] Said Wilson is to disclose to the undersigned [within two weeks from this date] immediately the owners of said theatres, names and location thereof, the prices at which same may be purchased and such other information desired by the undersigned which may be had by said Wilson. [c] In the event said properties, or stock in the corporations owning the same, should be bought at a figure or figures less than that first disclosed by said Wilson, he will be entitled to his compensation on the basis above stated. [d] The undersigned will have twelve months within which to buy as herein stated, [after] during which time however said Wilson will be at liberty to undertake to negotiate a sale or sales to others. [e] Said Wilson will be entitled to the compensation herein specified in the event the undersigned buys directly or indirectly, through himself or others, or through any corporation, partnership or other organization in which he may be interested, or should the undersigned, directly or indirectly, or through any organization in which the undersigned is interested, finance such purchase. This 23rd day of October, 1941. [f] This stipulation which follows as added in pen by Martin and agreed to by Wilson. Said Wilson is not to offer this deal to any other party within 120 days from above date."

It was further alleged that, immediately upon the execution of this contract, the plaintiff orally stated to the defendant that the theatres in contemplation were known as the Manning-Wink Circuit of Theatres which were owned by various corporations, the names of which were unknown to the petitioner, a part ownership in each of which was in a Mr. Hugh Manning of Etowah, Tennessee. A part ownership in each was also in the estate of Herman Wink, who had resided at Dalton, Georgia, of which his widow was the chief beneficiary; and the controlling interest in all of the said theatres was held by the said Hugh Manning and Mrs. Herman Wink, and the management and control at that time was under the direct supervision of the said Manning. The petition also gave the locations and descriptions of the various theatres in the circuit. The plaintiff stated further to the defendant that, while the said theatre properties had not been placed on the market for sale and no definite sale price had been fixed for the properties, the said Manning in various discussions with the plaintiff had stated that he would sell the properties, but was unwilling to fix a definite price at that time other than it would be in excess of $600,000, plus the cost of construction of the theatre building in Dalton, Georgia, which was then in the process of construction, which cost would be approximately $120,000. At this time the plaintiff also stated to the defendant that the said Hugh Manning, or any other person interested in said chain of theatres, should not immediately be contacted by the defendant, but that the plaintiff alone should be permitted to handle the first negotiations for the purchase of the theatres on behalf of the defendant; and the plaintiff explained to the defendant that the plaintiff should have at least two weeks to negotiate an option from the owners by dealing through the said Manning. The defendant assured the plaintiff that he would keep the entire matter confidential until the plaintiff could have time to negotiate in the defendant's name for the purchase of said chain of theatres. Sometime later, it was alleged, the defendant violated the terms of the agreement with reference to the negotiations by calling the said Manning over the telephone before the plaintiff had time to contact Manning or do anything toward obtaining an option or an agreement from him to sell said chain of theatres. After the conversation and agreements with reference to the negotiations were made following the execution of the contract, the defendant never permitted the plaintiff to sit in with him upon any of the negotiations, but on the contrary chose to deal directly and without assistance from the plaintiff in the purchase of the theatres. On March 3, 1942, after considerable progress had been made toward the completion of the theatre under construction in Dalton, Georgia, the defendant, wrote the plaintiff that he had been offered the theatres at $660,000, plus the cost of finishing the new theatre, two down payments of $120,000 each, plus 4 percent, with Martin signing the notes of his corporation personally as guarantor. This was the approximate price that the plaintiff had disclosed to the defendant. The defendant himself continued to handle the negotiations for the purchase of said theatres, and deliberately and purposely delayed the closing of the purchase of said theatre circuit until after the expiration of one year from the execution of the contract with a view of preventing this plaintiff from recovering the commissions due him, as provided in the contract. After delaying the closing of the purchase for more than a year, for the purpose of defeating said right of commission on such sale, and realizing that prices were advancing and that he would never be able to purchase the theatres at a lower price, the defendant sometime during the month of August, 1943, agreed with the owners of said theatre circuit to close the transaction, at which time he asked the said Manning if he thought there was any way that the defendant would defeat the payment of the commissions to the plaintiff, and if the said Manning thought the defendant would have any trouble settling with the plaintiff for the commissions provided in the contract. It was also alleged that all the delays in consummating the purchase of the chain of theatres were brought about primarily by the defendant for the purpose of defeating the plaintiff's right to a commission, and that said acts on the part of the defendant in themselves amounted to a fraud on the plaintiff, as shown by the defendant's conduct all through the whole transaction. The plaintiff charged that, by reason of the facts set out in his petition as amended, the defendant by his conduct is estopped to deny his obligation to the plaintiff to pay commissions as provided in the contract. The defendant accepted the information given him by the plaintiff immediately upon signing the contract, and proceeded thereafter, alone, to deal directly with the owners of the said theatre circuit. Not only is the defendant estopped to deny his obligation to pay the commission to the plaintiff, but the facts set out in the amended petition show conclusively that the defendant intentionally waived all the requirements of the contract insofar as the plaintiff is concerned, except the one requirement that the plaintiff furnish to the defendant the name of the theatre circuit which the defendant might buy. The plaintiff is informed that the defendant purchased the said chain of theatres on or about October 1, 1943. for the sum of $950,000. Upon consummation of the said contract of purchase, the defendant became indebted to the plaintiff in the amount of $47,500, representing 5 percent of the purchase-price of the theatres; and at the time this suit was filed the defendant was due him the sum of $9,500, which represents 1 percent commission on the said sale, and which accrued on or about October 1, 1943, and which has been demanded of the defendant; and the defendant has failed and refused to pay the same or any part thereof. It was further alleged that, on account of all the facts and circumstances set out in the petition, the defendant is obligated to pay the plaintiff for his services because the defendant accepted the benefit of the services rendered by him.

The defendant filed general and special demurrers to the petition as amended, and upon a hearing the court sustained the general demurrer and dismissed the petition, and the plaintiff excepted. 1. Martin, the defendant in error, was in the market to purchase theatres to add to those which he already owned; and, as an inducement to Wilson, the plaintiff in error, to reveal to him the name of a chain of theatres which Wilson had reason to believe was for sale for a reasonable figure, Martin agreed to pay Wilson 5 percent commission of the purchase-price if purchased by Martin or any organization in which Martin was interested. The terms upon which Wilson was to make this revelation were reduced to writing, and this resultant contract is the basis of the present action. It is the contention of counsel for the plaintiff in error that the agreement in paragraph (a) of the contract was to pay Wilson 5 percent commission on the purchase-price conditioned only upon the purchase by Martin, unqualified as to time and amount. However, we must look to the whole contract to determine the intention of the parties. Code, § 20-704 (5); Spooner v. Dykes, 174 Ga. 767 (153 S.E. 889). Paragraphs (c) and (d) expressly place a qualification upon the earlier term of the contract by stating that, "in the event said properties, or stock in the corporations owning the same, shall be bought at a figure or figures less than that first disclosed by the said Wilson, he will be entitled to his compensation on the basis above stated," and that "the undersigned will have twelve months within which to buy as herein stated." Thus, the plain and explicit language of the contract refutes this argument of counsel.

2. While it is true that, in order to arrive at the true interpretation of contracts all the attendant and surrounding circumstances may be proved (Code, § 20-704 (1)), in the absence of an allegation that something was omitted from the contract or that the writing did not constitute the entire contract, and such fact is not apparent upon the face of the writing, an allegation that, contemporaneously with or subsequently to the execution of the contract, Martin agreed to allow Wilson two weeks within which to negotiate an option for the purchase of the chain of theatres, would be objectionable as it would be in contravention of the rule denying parol proof variant from the written terms of the contract. All previous negotiations were merged in the written contract, and an additional obligation cannot be grafted thereon. See Roberts v. Investors Savings Co., 154 Ga. 45 (113 S.E. 398); Slaten v. College Park Cemetery Co.,185 Ga. 27 (193 S.E. 872). Nor was Martin's action in proceeding in the negotiations without the further assistance of Wilson a violation of the contract, which clearly states in paragraph (a) that the purchase of the theatres may be "handled by either the undersigned directly or by said Wilson or by them jointly at the option of the undersigned."

3. While, under the facts alleged, the theatre chain was offered to Martin at a price very close to that which Wilson had quoted to Martin upon the execution of the contract, Martin's failure to purchase at the time of this offer could not be said to constitute a violation of the contract or a fraud upon Wilson, as the terms of the offer to sell, requiring Martin to sign the notes of the corporation through which he was to make the purchase as personal guarantor, were objectionable to Martin, and the contract did not make it imperative upon him to purchase upon any terms offered, but only those terms which were agreeable to him.

4. It is further contended by counsel for the plaintiff in error that Martin sought to defraud Wilson by purposely delaying the purchase until more than a year after the expiration of the contract. Even if this had been true, and we do not express any opinion on this point, the contract makes no provision for the payment of commissions in the event that Martin purchased at a price greater than that first stated by Wilson to be the approximate figure at which he could obtain the chain of theatres. We see from paragraph (c) that the parties to the contract went to the trouble to stipulate expressly upon what conditions the commissions would be payable; namely, if Martin purchased at approximately the figure first stated by Wilson as the price for which the theatres might be purchased, or if Martin purchased at a smaller figure. There is no mention of the payment of commissions in the event that Martin should purchase at a greater figure, and we cannot say that it was the intention of the parties that commissions would be paid in the event the purchase-price was greater than that first stated by Wilson, and it is not within the province of this court to reform written contracts. There is no allegation that Martin paid a higher price than the one revealed to him by the plaintiff for the purpose of defrauding the plaintiff.

For the reasons above stated, the court did not err in sustaining the general demurrer.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.