Opinion
45178.
ARGUED APRIL 13, 1970.
DECIDED MAY 20, 1970. REHEARING DENIED JUNE 16, 1970.
Action for broker's commission. Fulton Civil Court. Before Judge Bradford.
Smith, Cohen, Ringel, Kohler, Martin Lowe, Hoke Smith, H. A. Stephens, Jr., for appellant.
Birnbrey, Kresses Gold, Sid M. Kresses, for appellee.
Verdict and judgment for a plaintiff real estate broker are supported by proof that the defendant owner listed space with the broker for lease and thereafter granted the present tenant a right to remain on the property by meeting any higher offer of rent; allowed the broker to obtain a prospective lessee at a substantially higher rent rate without informing either the broker or prospective lessee that its purpose in so doing was to offer the first refusal to the present tenant, and thereafter used the lease offer so procured only to raise the rent of the current tenant while refusing to rent to the tenant so procured. No error of law on the part of the trial judge appears.
ARGUED APRIL 13, 1970 — DECIDED MAY 20, 1970 — REHEARING DENIED JUNE 16, 1970.
Appellant D. H. Overmyer Co. is a corporation with New York headquarters engaged in owning and leasing property. It owned a warehouse containing approximately 20,000 square feet in which Mead Packaging Co. was a tenant at will who had been paying 53¢ per square foot, a rent which was raised or attempted to be raised to 72¢ per square foot in the latter half of 1967. During the latter part of November, Strauss, Overmyer's Atlanta manager, sent flyers to various Atlanta real estate brokers stating that it had 20,000 feet of warehouse space for lease at a given address, the price and length of term unstated. On December 13, Strauss was contacted by the plaintiff real estate company, whose witness testified that he first called Strauss and looked over the property, then contacted the manager of Atlanta Crown Distributing Company who he had correctly been informed was looking for space, took her to see the property and obtained her expressions of interest, handled negotiations between the parties as to the price, terms, and installation of improvements by the tenants, obtained the oral agreement of all parties to sign a lease for five years with various options based on a beginning rate of 82¢ per square foot, and then drew up the lease, had it signed by the proposed tenant, signed it as broker, and forwarded it to the defendant. The only real conflict in evidence is when the parties were first informed that the defendant lessor had given Mead first refusal of any new lease terms, Strauss contending he told the plaintiff that at the first interview and plaintiff denying any notice or knowledge prior to having worked out all arrangements, obtaining the agreement of the proposed new lessee, and actually getting down to the work of writing the lease. The proposed new lessee also testified that she had no knowledge of these facts until after the defendant refused to sign. From other documentary evidence it appears that the current tenant Mead and the defendant agreed on December 13 to a continuation of the tenancy at will at 72¢ per square foot with first refusal to Mead of continued occupancy meeting any higher price which defendant might be offered. On January 2, 1968, defendant wrote Mead informing it that defendant had obtained a 5-year lease at 82¢ per foot and requesting possession. Mead thereupon met the new rate and plaintiff and its proposed lessee were notified that the lease to Atlanta Crown would not be consummated. It was admitted on the trial of the case that Mead's agreement to pay the higher rent was obtained as a result of the services of the plaintiff in procuring a tenant willing to pay the higher rate. A jury verdict for plaintiff was in the same amount (1) alleged in Count 1 of the petition as the damages to plaintiff caused by defendant's bad-faith representation to plaintiff that the warehouse was for lease when plaintiff did not intend to accept the lessee obtained by plaintiff's efforts, but only to use plaintiff's efforts and the offer to lease by plaintiff's client in order to boost the rent on its existing client; (2) alleged in Count 2 as the reasonable value of plaintiff's services, and (3) shown by the evidence as conforming to the scale set out in the lease, plaintiff and defendant having previously agreed that such scale would apply to commissions paid.
1. Error is enumerated on the refusal of the trial court to force the plaintiff to elect between Counts 1 and 2. "The right of a plaintiff to try his case on alternate theories has uniformly been upheld in the federal courts and plaintiff cannot be required to elect upon which theory to proceed." Breeding v. Massey, 378 F.2d 171, 178. Code Ann. § 81A-108 (e) (2) allows inconsistent, hypothetical and alternative claims in pleading, and is to be construed like its Federal counterpart 8(e) (2). Cohen v. Garland, 119 Ga. App. 333 (3) ( 167 S.E.2d 599). Inconsistent remedies may be pursued until satisfaction is obtained. Bacon v. Winter, 118 Ga. App. 358 (3) ( 163 S.E.2d 890). This means after, not before, verdict.
2. Count 2 was not subject to dismissal or the verdict subject to be set aside on the theory that the plaintiff, if he was entitled to a recovery, was entitled under the theory of express rather than implied contract. The commissions as figured by the Atlanta Real Estate Board schedule were made a part of the lease contract drawn up for Atlanta Crown but this contract was never consummated. Further, any oral agreement between the owner and broker to pay at this rate was obviously executory and in contemplation of merger of this provision in the written tripartite lease agreement. Sidestepping entirely the question of whether under the new pleading rules evidence admitted without objection and proving an express contract would, as it formerly did, nullify a recovery on quantum meruit, Count 2 of this action was based on the reasonable value of plaintiff's actual services in obtaining a party ready, willing and able to lease the premises but who did not in fact lease the premises due to the fact that defendant used plaintiff's efforts to raise the rent on a current tenant and thereby refused to accept the one offered. A quantum meruit verdict is supported by the evidence.
Judgment affirmed. Hall, P. J., and Evans, J., concur.