Landrum v. Lipscomb-Ellis Co.

Sutton, J.

1..Where property is placed in the hands of a real-estate broker for sale on commission, the commission is earned when, during the agency, the broker finds a purchaser, ready, able, and willing to buy, and .who actually offers to buy on the terms stipulated by the owner. Code, § 4-213; Phinizy v. Bush, 129 Ga. 479 (59 S. E. 259); Payne v. Ponder, 139 Ga. 283 (77 S. E. 32); Gresham v. Lee, 152 Ga. 829, 832 (111 S. E. 404); Floyd v. Boyd, 16 Ga. App. 43 (5) (84 S. E. 494); Montgomery v. Lester, 25 Ga. App. 660, 662 (104 8. E. 28). The petition as amended set forth a cause of action for commission due the plaintiff real-estate broker, and the trial court properly overruled the general demurrer.

2. But where, as in the present case, it, appears from the uneontradieted evidence that the plaintiff never produced a customer who was ready, able, and willing to buy, and who actually offered to buy on the terms expressly stipulated by the. defendant; the owner of the property in question, and that, before the sale of the property by the defendant himself to one who had been introduced to him by the plaintiff’s agent as its prospect, the negotiations between such prospect and the plaintiff had come to an end, and that the defendant had not at any time interfered with the efforts of the plaintiff to effect a sale during the agency, a verdict in favor of the defendant was demanded as a matter of law, and the judge, before whom the case was tried without the aid of a jury, erred in rendering judgment for the plaintiff and in overruling the defendant’s motion for new trial. Doonan v. Ives, 73 Ga. 295, 303 (3); Thompson v. Weeks, 60 Ga. App. 560, 563 (4 S. E. 2d, 415).

Decided April 22, 1940. Rehearing denied June 10, 1940.

3. The appellate division of the civil court of Fulton County properly affirmed the judgment overruling the general demurrer, but erred in affirming the judgment overruling the defendant’s motion for new trial.

Judgment reversed.

Stephens, P. J., and Felton, J., conour. Clifford Hendrix, for plaintiff in error. Sutherland, Tuttle & Brennan, William, G. Grant, contra.