Alcovy Realty Company v. Stone Mountain Abstract Company , 137 Ga. App. 597 ( 1976 )

137 Ga. App. 597 (1976) 224 S.E.2d 519

ALCOVY REALTY COMPANY
v.
STONE MOUNTAIN ABSTRACT COMPANY et al.

51696.

Court of Appeals of Georgia.

Argued January 15, 1976. Decided February 13, 1976.

Campbell & Bouchillon, Jerry D. Bouchillon, for appellant.

Claude E. Hambrick, for appellees.

WEBB, Judge.

Alcovy Realty Company brought suit on a real estate sales contract seeking recovery of broker's commission from the sellers. The agreement as to commission provided: "Sellers agree to pay real estate brokerage commission in the total amount of $100,000.00, divided equally between Alcovy Realty Company and Wiley S. Ansley Company, payable in the following manner:

(a) $50,000.00 to be paid at time of closing.

(b) The remaining $50,000.00 due shall be payable in three annual notes, the first two in the principal amount of $16,666.00 and the third in the amount of $16,668.00.

(c) Said notes shall be due and payable to brokers annually at the time sellers are paid the notes due from purchaser." (Emphasis supplied.)

It is thus apparent that the plaintiff broker's right to a commission is dependent upon the actual consummation of the contract of sale, which has never occurred. However, "Even though a right to commission may be dependent upon the actual consummation of the sale, recovery is allowed where the consummation is prevented by the refusal or interference of the seller. [Cits.]" Suburban Realty, Inc. v. Busbin, 136 Ga. App. 850, 851. Since defendant sellers have not carried their burden of eliminating this issue from the case, the grant of summary judgment to them must be reversed. Suburban Realty, supra. While it was held in prior litigation over this contract that the buyer was not entitled to specific performance because it had failed to perform a condition precedent (Ansley v. Atlanta Suburbia Estates, 230 Ga. 630 (198 SE2d 319)), thus lending support to the view that consummation was not prevented by the wrongful refusal or interference of the sellers, plaintiff broker was not a party nor privy to the parties in that action and is not bound by that judgment. Code § 110-501; Hart v. Manson, 119 Ga. 865 (4) (47 S.E. 345).

Judgment reversed. Deen, P. J., and Quillian, J., concur.