Morris v. Jackson

Bussell, J.

(After stating the foregoing facts.) There is no evidence that in declining to accept the offer made prior to January 1, 1909, as to the exchange of the properties, the owner did so with the concealed intention at the time to accept the offer after the expiration of the agency contract, simply for the purpose of evading the payment of the agent’s commission. The relation of principal and agent requires good faith inter soso, and the law will not tolerate one taking an unfair advantage of the other. Williams v. Moore-Gaunt Co., 3 Ga. App. 756 (60 S. E. 372); Emery v. Atlanta Real Estate Exchange, 88 Ga. 321 (14 S. E. 556). It is evident that the parties considered time of the essence of the contract. Where an owner gives to an agent exclusive control of his property for a named number of days'or specified time,.the time named is such a material part of the contract as to go to its essence. Emery v. Atlanta Real Estate Exchange, supra. The mere fact that after the expiration of the agency contract the owner sells the property for a lesser sum than therein named, when taken alone, indicates nothing so far as the agent’s right to commissions is concerned ; nor is the fact that the sale is made to a person with whom the agent had been negotiating to be considered, otherwise than as it bears on the words, agent’s “client or customer,” as used in the agency contract. Doonan v. Ives, 73 Ga. 295 (1, a).

These words, as used in the contract in the instant case, must receive a reasonable construction. Certainly it was not the intention of the parties that every person to whom the agent had offered the property should afterwards be considered the agent’s client or cusr tomer. They were intended to prevent a sale by the owner after the expiration of ihc agency contract to a purchaser procured prior thereto on the terms therein authorized. The price authorized in the agency contract in the instant case was $6,000. The agent did not procure a purchaser at that figure, for the. undisputed evidence 'is that the city property offered was worth only $4,000. The owner liad a right to stand oñ his contract with the agent, and refuse to sell for less than the sum therein named, and subsequently to change his mind and sell to the same person for a less sum. In the absence of bad faith or fraud, any other rule would be manifestly unjust to the owner, who, after the expiration of the contract with his agent, is absolute owner of his property, to do with it as he sees fit.

There being no evidence of any bad faith or fraud, and the parties having made their own contract, according to the terms of which the agent failed to earn his commission, the verdict is contrary to law and without evidence to support it.

Judgment reversed.