Opinion
31283.
DECIDED JULY 10, 1946.
Complaint; from Gordon Superior Court — Judge Townsend. February 26, 1946.
J. H. Paschall, R. F. Chance, for plaintiff.
Henry L. Barnett, Y. A. Henderson, for defendants.
1. Where in an action on a written contract the contract is attached to the petition and shows on its face that the consideration for the services to be performed under the contract has been omitted, the plaintiff may by way of amendment show that the consideration was agreed upon orally, and also show what the consideration was.
2. A contract amounting to a brokerage contract for the sale of lands, containing no power on the part of the broker to execute a conveyance of the lands, is a contract for services and does not come within the statute of frauds as constituting a contract for the sale of lands.
3. When a broker, during the life of his contract of employment, secures a purchaser for lands agreeable to the vendor, who is ready, able, and willing to purchase on the terms stipulated by the owner, the broker has earned his commission agreed upon.
4. The petition set forth a cause of action against four of the defendants, as shown in the opinion.
DECIDED JULY 10, 1946.
B. J. Cantrell brought suit against Mrs. L. A. Johnston, both individually and as executrix of the estate of L. A. Johnston, Claude Johnston, Pearl Johnston, Mildred Johnston, Mrs. Flora McTeer, and Mrs. Zera Johnston Jones, to recover a commission of $750 for the sale of certain lands. Allegations of the petition material to a determination of the case are as follows: On August 7, 1942, the defendants employed the plaintiff to sell certain lands and agreed to pay him all over $4500 that he might obtain for the said lands. The contract was in writing and is attached as Exhibit A. During the life of the contract the plaintiff sold the lands described in the contract for $5250, which was paid to the defendants, but they have failed and refused to pay the plaintiff the sum due him of $750, which is the excess over and above the $4500.
Mrs. L. A. Johnston demurred to the petition in her representative capacity. Mildred Johnston filed a separate demurrer, and Mrs. L. A. Johnston, Pearl Johnston, and Claude Johnston filed a joint demurrer. With the exception of Mrs. L. A. Johnston's demurrer in her representative capacity, all the other demurrers are materially the same. Each sets out that the petition fails to state a cause of action, and that the allegation that the sale of the lands was made during the life of the contract is a conclusion of the pleader.
The plaintiff amended his petition to include substantially the following allegations: That acting under and by virtue of the written contract, the plaintiff began to make efforts to find purchasers for the property, and during the month of September, 1942, procured purchasers who were ready, able, and willing to buy and who were agreeable to the vendors. The plaintiff is unable to give the exact date in September on which he secured the purchasers, but will furnish this information later. The purchasers were Atlanta Oak Flooring Company and Atlanta Plywood Lumber Company. He further alleged that, after he had spent his time and money in securing the purchasers and the date had arrived to close the deal and pay over the money, it was discovered that there were certain flaws and imperfections in the title of the defendants, the nature of which the plaintiff was not informed; but that the price was satisfactory and acceptable to the defendants. It then developed that it would take some time for the defendants' attorneys to clear the title, and it was then mutually agreed orally between the plaintiff and the defendants that said option would continue until such time as the defendants' attorneys could cure the defects in the title, and that the plaintiff would be paid his commission or the surplus over and above $4500 received by the defendants for the property. This agreement was "understood upon" by the plaintiff and all of the defendants. Pending the perfecting of the defendants' title, the two purchasers deposited with Atlanta Title Company the money with which to pay the full purchase-price, this being agreed upon and satisfactory with all the parties concerned. Further, since the defendants were in urgent need of the timber on said lands, a deed from the defendants to the timber was accepted, and on October, 1942, title to the timber located on the optioned lands was made to the purchasers; and at a subsequent date, which the plaintiff will show to the court, but which is well known to the defendants, they executed title to the lands to the above named purchasers and received $750 in excess of the optioned price, but failed and refused to pay said sum to the plaintiff. Further, Mrs. L. A. Johnston was the duly qualified executrix of the estate of L. A. Johnston under a will authorizing her to sell either at public or private sale any of the lands owned by the estate without an order of court; and though the option does not show on its face that she executed the same in her representative capacity, yet it was so intended and she is liable, both individually and in her representative capacity.
Mrs. L. A. Johnston, Pearl Johnston, and Claude Johnston renewed their joint demurrer, and further demurred to the petition as amended upon the grounds that the alleged oral contract to extend the option of the plaintiff violated the statute of frauds, and that a contract partially in writing and partially oral is unenforceable.
The material stipulations of the written contract are as follows: "This indenture, made this 7th day of August, 1942, between Mrs. L. A. Johnston, Pearl Mildred Claude Johnston, parties of the first part, and B. J. Cantrell, party of the second part. Witnesseth, that the party of the first part agrees to option, for the purpose of selling and by these presents does option to the party of the second part, who desires to purchase the same, [certain described lands] for four months for the sum of $1.00 in hand paid. . . It is further agreed and contracted between the party of the first part and the party of the second part, that if, at any time, during the existence of this option, party of the second part shall desire to purchase the above described property for the sum of $4500, and other considerations, the party of the second part shall have the right to purchase said property for said sum, upon the following terms: The sum of $ ____ shall be paid at the time the property is purchased and the balance to be paid as follows: cash if a timber sale can be made the purchase-price is net, of $2000 to the owner, and other considerations. And it is further agreed that upon the payment of the entire amount of the purchase-price of the above-described property the party of the first part hereby agrees and bind — to make party of the second part, or any person, or persons, that party of the second part may designate or name, a good and sufficient warranty deed in fee simple to the above described property. . . Part — of the first part agree — to pay part — of the second part ____ percent commission in the event of sale by or through the efforts of part — of the second part, and part — of the first part distinctly agrees that if during the life of this option ____ should sell said property or accept a less price or terms other than as stated above, or if at any time within ____ months after the expiration of this option ____ should sell said property to any party or parties with whom part — of the second part — may put ____ in touch ____ agree — to pay part — of the second part a commission of — percent on the total amount of such sale." [Signed under seal by Mrs. L. A. Johnston, Claude Johnston, Pearl Johnston, and Mildred Johnston.] On the reverse side of this contract appears the following supplemental agreement signed by Mrs. L. A. Johnston, Claude Johnston, and Pearl Johnston: "It is hereby agreed by parties of the first part, to extend option on opposite side of this blank, for a period of sixty days. October 21, 1942."
The court did not rule upon the demurrer of Mrs. L. A. Johnston in her representative capacity, nor upon the demurrer of Mildred Johnston. Neither of these demurrers was renewed after the plaintiff amended his petition. The court sustained the joint demurrer of Mrs. L. A. Johnston, Pearl Johnston, and Claude Johnston, as renewed, and dismissed the petition. To this ruling the plaintiff excepts.
1. While it is generally the rule that one may not vary the terms of a contract in writing, it appears that the parties in this case made use of one of the standard printed, option-contract forms in reducing their agreement to writing, and omitted to fill in the blanks with reference to the plaintiff's compensation. It is alleged that the plaintiff, in September, 1942, during the life of the agreement, secured the purchasers, who were ready, able, and willing to purchase the lands of the defendants. However, when in September the time came for closing the sale, it developed that there were certain flaws in the defendants' title, and it was orally agreed that the option would be extended until the defendants' attorneys could cure the defects in the title, and that the plaintiff would receive his commission or the excess over and above the sum of $4500. This oral agreement as to the plaintiff's commission or compensation does not vary, add to, or take from the written agreement, but merely makes certain the consideration for the plaintiff's services, an item obviously omitted from the written agreement.
2. The written contract was entered into for the purpose of securing the services of the plaintiff in selling the lands of the defendants; and while it contained an option to purchase on the part of the plaintiff, reduced to its essential elements, the contract was nothing more than a brokerage contract for the sale of the lands of the defendants for $4500; and this, taken with the oral agreement as to the amount of the plaintiff's compensation for such services, which consideration, as we have said, was omitted from the written contract, constituted a contract to sell the lands of the defendants for $4500, with the understanding that the plaintiff would receive any excess of this amount. This is a contract for services and not one for the sale of land, and does not, therefore, come within the statute of frauds as constituting a contract for the sale of lands ( Watson v. Brightwell, 60 Ga. 212; Garrett v. Wall, 29 Ga. App. 642, 116 S.E. 331; Lingo v. Blair, 32 Ga. App. 111, 122 S.E. 802); and even if the contract were to be said to be required to be in writing ordinarily, the plaintiff alleges that he had fully performed his part of the contract by securing purchasers who were agreeable to the defendants and who were ready, able, and willing to purchase; and who, indeed, did purchase the lands of the defendants, and would, therefore, come within the exception of the Code, § 20-402 (2).
3. Whether or not the plaintiff's allegation that the land was sold during the life of the contract is a conclusion of the pleader is immaterial under the facts of the case, as it is of small moment when the sale actually took place. The plaintiff's commission was earned as soon as he produced purchasers agreeable to the defendants who offered to purchase and who were ready, able, and willing to do so on the terms stipulated by the owner — nothing else appearing. Code, § 4-213.
4. In view of what has been said in the foregoing divisions of the opinion we think that the petition set forth a cause of action against Mrs. L. A. Johnston, Claude Johnston, Pearl Johnston, and Mildred Johnston; and while there may or may not be some misjoinder of parties — and on this we express no opinion — this must be taken advantage of by special demurrer at the first term and cannot be reached by a general demurrer. Reese v. Reese, 89 Ga. 645 ( 15 S.E. 846).
For the foregoing reasons the court erred in sustaining the joint demurrer of Mrs. L. A. Johnston, Claude Johnston, and Pearl Johnston.
Judgment reversed. Sutton, P. J., and Parker, J., concur.