Opinion
39339.
DECIDED APRIL 16, 1962.
Action for damages. Fulton Civil Court. Before Judge Etheridge.
George H. Kasper, Jr., Mildred L. Kingloff, for plaintiff in error.
Mitchell, Clarke, Pate Anderson, Haas, Holland Zinkow, Wm. M. Sinrich, contra.
The petition states a cause of action in tort based upon an alleged conspiracy to deprive a real estate broker of commissions due upon the sale of property.
DECIDED APRIL 16, 1962.
Plaintiff, a real estate broker, brought this action against defendants Eubanks and Weiss seeking unliquidated damages in tort against the two defendants. In the petition it was charged that they illegally conspired together and fraudulently deprived plaintiff of her real estate brokerage commission; that she was employed by the defendant, Eubanks, to seek a purchaser for a house which he was to build on a certain lot; that he employed the plaintiff to procure a purchaser for the house to be built; that he was to receive $16,000 net for the property and that the plaintiff was to fix the asking price at $16,850 out of which she would receive a 5 percent commission of $842.50; that plaintiff informed defendant Eubanks that she had a customer, defendant Weiss, who was interested in such a house; that plaintiff made an appointment with both defendants to look at defendant Eubanks' model house; however, while defendant Weiss kept the appointment, defendant Eubanks did not; that plaintiff had approximately twenty conversations with the defendants concerning the sale of the property between April 21 and October 19, 1960; that on the latter date defendant Weiss fraudulently informed plaintiff that he had changed his mind and decided not to buy the property, notwithstanding that he had entered into a sales contract with defendant Eubanks on or about August 29, 1960, and had made application for a loan commitment on the property a few days later which facts were unknown to plaintiff; that defendant Weiss purchased the property from defendant Eubanks by warranty deed dated November 3, 1960; that defendant Weiss did induce, conspire with and cause defendant Eubanks to breach the real estate brokerage contract with plaintiff whereby Weiss was able to obtain the property without the real estate commission for $350 less and defendant Eubanks was able to obtain a net amount of $500 more; that these defendants wilfully and maliciously entered into an illegal conspiracy contrary to the laws of the State of Georgia, whereby they confederated and conspired to effect a sale of the property between themselves, the purpose and object of which was to deprive the plaintiff of a real estate brokerage commission in amount of $842.50; that she was damaged in the amount of $2,342.50, including $1,000 damages because of aggravating circumstances, and to deter defendants from repeating their wilful, malicious and unlawful acts, or as compensation for the wounded feelings, humiliation and embarrassment of the plaintiff, and $500 as reasonable attorney fees.
The defendants in error filed their general demurrers. After argument, the trial court entered two separate orders sustaining each defendant's general demurrer to the plaintiff's petition and dismissing it on the ground that the plaintiff's right of action, if it existed at all, is in contract and that no right of action exists against either defendant in tort. The special demurrers of the respective defendants were not passed upon. To the order sustaining the general demurrers the plaintiff excepted.
Plaintiff contends that the trial court erred in sustaining the general demurrers of defendants, since the petition stated a cause of action against them for conspiring to deprive her of the commission allegedly earned by being the procuring cause of the sale of the property.
Defendant Eubanks, the seller, contends that the obligation to the plaintiff to pay commission, if any was due her, was in contract or quasi-contract but not in tort. Defendant Weiss contends that the plaintiff had no right to the commission, since the owner may sell his property even though he has employed agents to sell it; and that plaintiff has alleged no improper acts or methods to give effect to the allegation of conspiracy.
Even though an owner has placed property with a broker to sell, unless otherwise agreed, the owner may sell it. Code § 4-213. The petition in the present case does not charge that there was any agreement to prevent the owner from selling the property himself. "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 petition here asserts that the oral listing of the property by the owner provided that the price was to be $16,000 net to him, and the asking price would be $16,850 in order for the plaintiff to recover her 5 percent commission of $842.50. The petition alleges that the sale made by the owner to the buyer, who was allegedly obtained by the plaintiff, was at a price $350 less than the price the owner had fixed in his contract with the agent, but the owner obtained $500 more by the sale.
Code § 4-213 provides that the broker's commission is earned when he finds a purchaser ready, willing, and able to buy who actually offers to buy on the terms stipulated by the owner. In order for the agent to recover, the offer to buy must be in the exact terms stipulated. "The offer must be accepted `unequivocally and without variance of any sort'." Gray v. Lynn, 139 Ga. 294, 296 ( 77 S.E. 156). See also Weldon v. Lashley, 214 Ga. 99 ( 103 S.E.2d 385), reversing Weldon v. Lashley, 96 Ga. App. 761 ( 101 S.E.2d 779). Also Hyams v. Miller, 71 Ga. 608, 618; Doonan v. Ives Krouse, 73 Ga. 295; and Emery v. Atlanta Real Estate Exchange, 88 Ga. 321 ( 14 S.E. 556).
"If no cause of action is otherwise alleged, the addition of allegations concerning conspiracy will not make one. . ." Cook v. Robinson, 216 Ga. 328, 329 (4) ( 116 S.E.2d 742). And see National City Bank of Rome v. Graham, 105 Ga. App. 498 ( 125 S.E.2d 223). "Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage." Vandhitch v. Alverson, 52 Ga. App. 308, 310 (1) ( 183 S.E. 105). Also see Woodruff v. Hughes, 2 Ga. App. 361 (1) ( 58 S.E. 551); Bentley v. Barlow, 178 Ga. 618 ( 173 S.E. 707); Peoples Loan Co. v. Allen, 199 Ga. 537, 558 ( 34 S.E.2d 811); Walker v. Grand International, 186 Ga. 811, 820 ( 199 S.E. 146).
While, under the petition, the defendant seller sold the property for $350 less than the price at which he listed it with the plaintiff agent, he received, by reason of the conspiracy alleged between himself and the buyer by which the agent was eliminated from the transaction, $500 more for the property than he would have obtained had he sold through the agent and paid the commission. The petition alleges that, prior to the execution of their sales contract, each defendant had full knowledge of the contract of the defendant seller with the plaintiff, and further that the plaintiff was the procuring cause of the sale and that the conspiracy between the buyer and seller resulted in fraudulently depriving plaintiff of her real estate broker's commission in the amount of $842.50.
Here the buyer and seller allegedly conspired together to eliminate the agent, and in effect, to divide the agent's commission between them. A cause of action for conspiracy will lie in favor of the agent who is thus deprived of the commission. Rood v. Newman, 74 Ga. App. 686 ( 41 S.E.2d 183).
It is contended on behalf of the defendants that the Rood case is distinguishable from the facts here because there the title was taken in the name of a third party. This contention has no merit. Whether the broker is deprived of his commission by the buyer misrepresenting that he was no longer interested in the property, or the buyer obtains the property through a "straw man," the conspiracy in either case is actionable and obviously the damage to the broker is the same.
Judgment reversed. Felton, C. J., and Hall, J., concur.