Brittain v. Russell , 78 Ga. App. 719 ( 1949 )

The petition was not subject to the defendant's general demurrer, and the trial judge erred in sustaining the demurrer and in dismissing the action.

DECIDED FEBRUARY 11, 1949. REHEARING DENIED MARCH 4, 1949. W. B. Brittain sued Jack Russell to recover a real-estate commission of $675. The plaintiff alleged: that he was a licensed real-estate broker, and that Aasta K. Buchanan, as owner, listed with him, on June 1, 1948, a described house and lot in Columbus, Georgia, for sale at $15,750 cash; that the plaintiff showed the property to the defendant, Jack Russell, who, on June 5, 1948, executed a contract with the plaintiff as agent for said owner, offering $13,500, cash for said property and delivered to the plaintiff his check for $1000 as a binder; that, on June 7, 1948, Aasta K. Buchanan accepted Russell's offer and also executed said contract and delivered her old chain-of-title deeds and the keys to said property to the plaintiff, who in turn delivered them and a copy of the signed contract to said Russell, on June 7, 1948, and immediately thereafter the defendant took possession of said real estate and began cleaning it up; that, on June 12, 1948, the plaintiff presented the binder check of $1000 for payment at the bank on which it was drawn, and discovered that the defendant had stopped payment on this check, and he contacted the defendant, on this same date, who told the plaintiff that he was not going to consummate the sale, but the defendant refused to return the old deed and keys to the property until June 22, 1948. It was alleged that the owner of the property was, at all times mentioned, able, ready, and willing to perform her part of said contract; that in said contract the defendant agreed to pay to the plaintiff a commission of 5% of $13,500, namely, $675, in case the sale was not consummated due to default on his part, and that said defendant did default in consummating the sale, on June 12, 1948. A copy of the contract and a copy of the check were attached to the petition. The contract provided in part: "The undersigned seller agrees to sell, and the undersigned purchaser agrees to buy, through W. B. Brittain as agent, [the described property]. The purchase-price of said property shall be . . $13,500 to be paid as follows: cash to owner. Upon compliance by the purchaser with the terms of this contract, said property shall be conveyed to the purchaser by deed with general warranty. . . The sale is to be consummated within 15 days from the date of the acceptance of this offer by seller or purchaser who last executes this contract. . . Purchaser has paid to seller's agent, W. B. Brittain, . . $1000, as earnest money, to be applied as part payment on the purchase-price of said property. If the sale is not consummated due to purchaser's default, the earnest money shall be applied to agent's commission hereunder and agent shall pay the balance, if any, to seller to be applied toward seller's damages caused by purchaser's default. In the event the sale is not consummated for reasons other than default of purchaser, the earnest money is to be refunded to the purchaser. The agent in negotiating this contract has rendered a valuable service, and seller agrees to pay agent's commission in accordance with the schedule printed on the reverse side hereof. If sale is not consummated due to default of purchaser, seller shall not be obligated to pay any commission, but purchaser hereby agrees to pay said commission to agent. . This instrument shall be regarded as an offer by the party who first executes the same, to the other, and is open for acceptance by the other until noon, on the 7th day of June, 1948, by which time it must have been accepted and executed by both seller and purchaser in triplicate and have been actually received by the agent.

Witness the hand and seal of            Witness the hand and seal
the seller, this 7[th] day of              of the purchaser, this
June, 1948.                                5th day of June, 1948.
Aasta K. Buchanan (L. S.) 11:50              Jack Russell (L. S.)
a. m. Seller                                  Purchaser
W. B. Brittain (L. S.)                     W. B. Brittain (L. S.)
Agent                                        Agent."

Under the sales commissions and rules shown on the reverse side of the contract the following stipulation appears: "The commission has been earned by the agent and is due and payable when the agent secures a purchaser who is accepted by the seller — signing of contract being prima facie evidence of consummation. Imperfections of title shall not invalidate commissions."

The defendant demurred generally and specially to the petition, the grounds of the general demurrer being: (a) that the petition did not set forth a cause of action against the defendant; (2) that no cause of action was set forth because it appeared from the petition and contract attached thereto as an exhibit that the plaintiff was not a party to the contract which was declared to be the basis of his suit. The court sustained the general demurrer and dismissed the action, and the plaintiff excepted. The petition shows that the owner of certain described property listed it for sale with the plaintiff, a real-estate broker, at a cash price of $15,750, and that the plaintiff within four or five days thereafter showed the property to the defendant as a prospective purchaser, who signed a written contract to purchase the property for $13,500, cash, and this offer was accepted by the owner, who also signed the contract. This contract was signed by the owner as seller, by the defendant as purchaser, and by the plaintiff as agent, and stated that the undersigned seller agreed to sell and the undersigned purchaser agreed to buy, through the plaintiff as agent, the described property, and that "The agent in negotiating this contract has rendered a valuable service and seller agrees to pay agent's commission in accordance with the schedule printed on the reverse side hereof. If sale is not consummated due to default of purchaser, seller shall not be obligated to pay any commission, but purchaser hereby agrees to pay said commission to said agent." The contract also stated that the purchaser had paid to the seller's agent (the plaintiff) $1000, as earnest money to be applied as part payment on the purchase-price of the property, and if the sale was not consummated due to the purchaser's default, this money was to be applied to the agent's commission and the balance to the seller's damage caused by the purchaser's default. But if a sale was not consummated for reasons other than the purchaser's default, then the earnest money was to be refunded to the purchaser. This was a valid contract and could have been enforced by either the seller or purchaser. It was not a unilateral contract as contended by the defendant. In this connection, see Palmer Brick Co. v. Woodward, 138 Ga. 289 (75 S.E. 480); Crawford v. English, 26 Ga. App. 563 (106 S.E. 621); Aspironal Laboratories v. Rosenblatt, 34 Ga. App. 255 (129 S.E. 140). In Haynes Auto Co. v. Turner,18 Ga. App. 22 (88 S.E. 717), cited and relied on by the plaintiff in error, the total liability of the plaintiff was limited in the contract to a return of the money paid, and there is no such limitation in the contract here involved. A contract is not unilateral when either party thereto can compel the other to perform his obligations under the contract. The plaintiff as a real-estate broker had earned his commission when he negotiated the transaction between these parties which resulted in the making of the binding sales contract between them. Had the trade been consummated, the seller would have been liable to the plaintiff for his commission; but, under the terms of the contract here involved, where the sale was not consummated due to default of the purchaser, as was alleged in the petition, the purchaser was liable to the plaintiff for his commission. The purchaser obligated himself to pay to the plaintiff (agent) his commission, in the event the sale was not consummated due to his default, and the plaintiff's action is based on this provision of the contract. The plaintiff signed the contract with the seller and the purchaser, and is entitled to enforce the provisions of the contract with reference to his commission as a real-estate broker. See Knowles v. Haas Dodd, 70 Ga. App. 715 (29 S.E.2d 312); Brown v. White, 73 Ga. App. 524 (37 S.E.2d 213). The trial judge erred in sustaining the general demurrer and dismissing the plaintiff's action.

Judgment reversed. Felton and Parker, JJ., concur.