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Action for commissions. Fulton Civil Court. Before Judge Parker. March 17, 1960.
FELTON, Chief Judge.
1. The petition seeking to recover on an oral agreement for the performance of services by the plaintiff broker is not subject to general demurrer.
2. The evidence fails to make out the case laid in the petition and the court erred in denying the defendant's motion for a new trial on the general grounds.
W. T. Robie, doing business as Robie Real Estate Company, filed his petition in Fulton Civil Court against Elijah Norwood seeking to recover broker's commissions allegedly due him under a verbal listing contract. The petition as amended alleged that the plaintiff was a licensed real-estate broker; that on or about March 15, 1958, the defendant engaged the plaintiff through its agent and salesman, E. Q. Adams, to procure a purchaser for certain real estate on the following terms, to wit: (a) sales price to be $13,950; (b) sales price to be paid by cash to defendant of $3,350, with purchaser assuming balance outstanding on preexisting first loan deed on said real estate in the amount of $10,600 with said first loan being payable to holder thereof in monthly instalments of $75.40 per month inclusive of principal and interest; (c) that the property was to be delivered free and clear of all liens and encumbrances with exception of first loan deed referred to in subparagraph (b) herein above, by seller; (d) 1958 taxes to be prorated as of date of closing; (e) sale to be closed on or before May 19, 1958; and (f) possession of the house to be available for buyer within 7 days from date of closing of sale; that at the time the defendant agreed to pay the plaintiff a commission equal to 5% of the said purchase price in consideration of services rendered and to be rendered by the plaintiff to the defendant in procuring a purchaser of the said property on the said terms; that the engagement of the plaintiff by the defendant and the terms of the proposed sale as made by the defendant to the plaintiff, were made orally; that pursuant to the said engagement and the terms of the proposed sale and while the said agreement between the parties was in force, the plaintiff did obtain bona fide purchasers for said property who were ready, willing and able to purchase the same on the terms set out; that the plaintiff has demanded payment by the defendant of the sum of $697.50 and the defendant has refused to pay the same, and no part thereof has been paid.
The defendant's general demurrer to the amended petition was overruled and the case proceeded to trial before a jury which returned a verdict for the plaintiff for the full amount sued for. The court entered judgment in accordance with the verdict and subsequently overruled the defendant's amended motion for a new trial. Error is assigned on this ruling and on the overruling of the general demurrer.
1. The petition in this case is not subject to demurrer because it seeks to recover on an oral agreement for the performance of services by the plaintiff broker or because it does not allege that the transaction has been closed by a conveyance and payment of the purchase price. Pierce v. Diech, 81 Ga. App. 717, 723 (59 S. E. 2d 755) and cit. "The broker's commissions are earned when, during the agency, he 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. The terms stipulated by the owner alleged in the petition are not so indefinite as to render the broker's contract unenforceable. The description of the pre-existing obligation to be assumed by the prospective purchaser was a "pre-existing first loan deed upon said real estate in the amount of ten thousand six hundred and 00/100 ($10,600) dollars, with said first loan being payable to holder thereof in monthly instalments of seventy five and 40/100 (75.40) dollars per month inclusive of principal and interest" is sufficiently definite to particularly identify the obligation in question. Since the petition specifically alleges the existence and duration of the broker's agency, the property listed for sale, the terms of compensation for the performance of the broker's services, the terms of sale stipulated by the owner and the procurement by the broker of a purchaser ready, able and willing to buy on such terms, and a refusal by the seller to pay the broker's commission in accordance with the contract, it is not subject to general demurrer. See in this connection Wehunt v. Babb, 84 Ga. App. 536, 538 (66 S. E. 2d 405); Teague v. Adair Realty &c. Co., 92 Ga. App. 463, 465 (88 S. E. 2d 795).
Q. Did you have that agreement you were to prorate the taxes? A. I didn't mention the taxes."
In addition, the testimony of the plaintiff himself is as follows: "Q. Mr. Robie, in your conversation with Mr. Norwood on any of these trips, did you talk about sales price? A. Yes, we talked about the balance he owed. He had his book. Q. Balance he owed? A. Balance he owed on a mortgage which he agreed to transfer, and he had his payment schedule, and we also talked in terms of the total sales price which would be necessary to pay the brokerage commission and get his equity out. Q. Did he give you a price that he would sell this house for? A. Yes, he said that he would take--well, at one time he said he would take $2,500. Q. $2,500 for what? . . . A. Not after paying the brokerage commission, and the Real Estate Commission instructs us when we list a piece of property like that the owner says, 'For my equity I want a certain figure,' we will add that figure to the net to this seller and arrive at the total sales price. Q. So, that wasn't the total price of the property. What was the total price of the property? A. $13,950 it would add up to. Q. And you talked about the assumption of the first loan deed on that? A. The assumption, yes, sir, of the first mortgage outstanding. He had a G. I. mortgage outstanding on the property. Q. The difference between that balance and the sales price is what you were talking about, a net equity to him? A. Including the difference between the balance he owed on the loan and the sales price would be the total cash coming out of which he would pay the brokerage commission. Q. That was your understanding with him? A. That's true . . . Q. (By the Court) What he's asking you is this. The night you went out there and discussed the terms of the listing with him, when you first went out there to see the property, was this $13,950 mentioned? A. $13,950 was the price that if you would take the commission, add to it the loan and his equity it would be $13,950. Q. (By the Court) I understand that. Did you mention what the total sale price would be? A. I didn't mention to him specifically what the total sales price would be. He simply stated how much money he wanted, and the Real Estate Commission instructs us to add our commission."
From this and other evidence in the record, the jury might conclude that the defendant had listed his property with the plaintiff broker for sale at an amount of $2,500 or $2,600 net to him, but the evidence does not support the allegations as to the express terms of sale and compensation. The agreement between owner and broker for sale of the owner's property for a named amount "net to him" does not import by implication a contract to allow the broker, as a fee, the excess of the purchase price above the sum so named. Metheney, Beasley & Koon v. Godin, 130 Ga. 713 (61 S. E. 703).
The cause of action set forth in the petition was on an express contract and could not by amendment, either by pleading or by evidence unobjected to, be converted into an action for quantum meruit to fill the gap as to amount of compensation, as contended by the plaintiff. See in this connection Davenport v. Pope, 96 Ga. App. 799 (101 S. E. 2d 614); Scott v. Scott, 169 Ga. 290 (2) (150 S. E. 154); Brannen v. Lanier, 97 Ga. App. 30 (102 S. E. 2d 96). Here the evidence fails to make out the case laid in the petition and the court should have granted a new trial because the verdict is contrary to law and without evidence to support it. Northwestern Fertilizing Co. v. Atlanta Nat. Bank, 80 Ga. 629 (5 S. E. 793).
The court erred in refusing to grant the defendant's motion for a new trial on the general grounds. In view of this ruling, it is unnecessary that we consider various errors assigned in the special grounds of the amended motion.
Judgment reversed. Nichols and Bell, JJ., concur.
Cassandra E. Maxwell, contra.
Daniel Duke, for plaintiff in error.
DECIDED JULY 15, 1960.
Saturday May 23 00:17 EDT

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