Crawford v. English

Hill, J.

(After stating the facts.)

1. Where' property is placed in a broker’s hands for the purpose of sale, the broker’s commissions are earned when, during the agency, he finds a purchaser reader, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner. This is a fight given to brokers by statute, which has so frequently been emphasized by the decisions of the Supreme Court and this court that it seems that citation of authorities is unnecessary. Civil Code (1910), § 3587; Harvil v. Wilson, 11 Ga. App. 156 (74 S. E. 845). The right of the owner to sell property which has been placed in.the hands of a broker for sale, unless it be otherwise agreed, is also recognized by statute, and this right has also been upheld by decisions of this court and of the Supreme Court. But this right of the owner does not authorize him to take advantage of the work of his agent in procuring a purchaser for. the property, nor to breach his contract with the agent and deprive the agent of commissions which have been earned under the contract, by himself making a personal sale to the customer who has been procured by the activities of the agent; in other words, where the agent has procured a customer or purchaser by his efforts in that behalf, the owner cannot deprive him of his commissions by completing the sale of which the agent was the • producing cause. The law contemplates that the owner shall assert his right to sell his property only on condition that he will do so without a breach of the contract made with his agent. Brown v. Stokes, 25 Ga. App. 254 (103 S. E. 423); Doonan v. Ives, 73 Ga. 295.

' 2. The objection is made by the demurrer that the plaintiff had no right to sell the property for his own benefit, because the previous contract made with Purvis to sell the same property, and his employment by Purvis to aid him in such sale, are in conflict with the allegations of the petition on this subject. These allegations showed that the contract made with Purvis by the defendant had expired by its express limitation before the contract made with the plaintiff; that after the expiration of the Purvis contract the defendant made a different contract with the plaintiff for the sale of the property, and it is manifest that reference to the Purvis contract is only by way of inducement, to show how the plaintiff came in touch with B. L. McMath, who subsequently became the purchaser of the property as the result of the negotiations with him by the petitioner, which were commenced under the Purvis contract and were completed under the petitioner’s individual contract with the defendant. There is no allegation in the petition which justifies the criticisin'. made. by the demurrer that the plaintiff’s alleged right to recover his commissions was inconsistent with his fiduciary relationship with Purvis under Purvis’ contract, for the allegations as to this point and the express terms of the Purvis contract show that the Purvis contract had expired by its own limitations, and that the plaintiff’s services were rendered under his own contract, made with the defendant after the expiration of the Purvis contract.

3. There is no merit whatever in the criticism, made by the supplemental demurrer, that the contract was unilateral. Both the contract with Purvis and the special contract subsequently made with the plaintiff, under which his rights accrued, are explicit as to the terms and conditions. It was expressly agreed, according to these allegations, that the described property was to be sold for the express price of $50 per acre cash to the owner, and that the plaintiff undertook to do this by the first day of January thereafter for the agreed commission of 5 per cent.; and the allegation is expressly made that all of these terms were agreed to by the defendant after they had been proposed by ' the plaintiff, and that, after the contract had been thus agreed on, the plaintiff had fully performed his part thereof and had earned his commissions .as therein stipulated. Nor is there any merit in the criticism of the demurrer that the property to be sold was not sufficiently, described. Indeed we think that the description of the property was entirely sufficient to identify the property placed with the agent for sale, even without the aid of aliunde evidence. We do not think tliat the description of property placed in the hands of a broker for sale needs to be as definite and complete as that which should be made in • deeds of conveyance. After giving to all the grounds of the demurrer careful consideration, in connection with the allegations of the petition that are specified, with the exception of the one sustained by the trial judge, we are of the opinion that none had merit. The allegations of the petition eleariy, distinctly, and sufficiently set forth a cause of action and a right of recovery, if proved, under the rules of law embodied in the code section referred to in this opinion and under the repeated rulings of the Supreme Court and of this court in relation there to.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.