Opinion
30919.
DECIDED JULY 16, 1945.
Complaint; from Fulton civil court — Judge Parker. April 16, 1945.
Ezra E. Phillips, for plaintiff in error.
Frank Carter, Sam P. McKenzie, contra.
It was error for the court to overrule certain demurrers to the petition, and the further proceedings in the case were nugatory.
DECIDED JULY 16, 1945.
Paul C. Maddox, doing business as Paul C. Maddox Company, sued Mrs. Ralph W. Hardy in two counts to recover $325 real-estate commission. The petition alleged: "Count one: 3. Petitioner shows that on the 24th of August 1944, defendant placed in petitioner's hands to sell for her a house located in the City of East Point, Georgia, known as No. 408 Jewell Street. The said property was listed with petitioner exclusively for a sixty (60) day period from August 24, 1944. Copy of exclusive contract, so far as the printed portions thereof are concerned, is hereto attached, marked Exhibit A, and made a part of this petition by reference as fully as if incorporated herein. The actual signed contract is not attached to petition because of the facts hereinafter stated. 4. After said exclusive contract was executed, petitioner advertised said property extensively at considerable expense to petitioner, and contacted numerous people concerning same, including one O. T. Walz. 5. Petitioner alleges that said property was listed at the price of $6500. 6. Petitioner further shows that on or about October 3, 1944, defendant informed petitioner that she had decided to rent said property and withdraw it from the sales market, and requested petitioner to surrender exclusive contract held by him, and petitioner delivered actual contract to defendant, which is reason actual contract is not attached hereto. Shortly thereafter, petitioner discovered that said exclusive contract had been secured by defendant by false misrepresentation in that immediately thereafter said defendant sold said property to O. T. Walz and his wife, Mrs. Edith M. Walz, for $6500, with full knowledge that the said O. T. Walz was the customer of petitioner and had been induced to purchase said property through the efforts of petitioner. 8. Petitioner further alleges that under the terms of said exclusive contract, which was still in force and effect according to its terms at time of sale to Otto T. Walz and Edith M. Walz, defendant is indebted to petitioner in the sum of $325, being the regular real-estate board's schedule of charges of commission in force and effect at the time said sale was completed. Count two: 3. Petitioner shows that on the 24th day of August, 1944, defendant placed in petitioner's hands to sell for her a house located in the City of East Point, Georgia, known as No. 408 Jewell Street. The said property was listed with petitioner exclusively for a 60-day period from August 24, 1944. 4. Upon the listing of said property, petitioner advertised same at considerable expense to petitioner, and contacted numerous people concerning same, including one O. T. Walz. 5. Petitioner shows that said property was listed at the price of $6500. 6. Petitioner further shows that on or about October 3, 1944, defendant informed petitioner that she had decided to rent said property and withdraw it from the sales market, and requested petitioner to surrender exclusive contract held by petitioner. 7. Petitioner, relying on representations of defendant, surrendered said contract to defendant. Petitioner alleges that said defendant procured said contract by false representation in that immediately thereafter, said defendant sold said property to O. T. Walz and his wife, Mrs. Edith M. Walz. 8. Petitioner further alleges that defendant had full knowledge that the said O. T. Walz had been interested in the property through the efforts of petitioner. 10. Petitioner further alleges that he was the procuring cause of said sale to Otto T. Walz and his wife, Edith M. Walz, and is entitled to regular real-estate commission thereon. 11. Petitioner shows that the amount of said commission is $325, under the schedule of commissions fixed by the Atlanta real-estate board." The pertinent parts of the skeleton contract attached to and made a part of the first count is in substance as follows: "In consideration of your acceptance of the terms of this agreement and of your promise to list, to offer for sale, and to endeavor to sell my property hereinafter described, to advertise the same in such manner as you may deem advisable, and further, to enlist in this behalf the best efforts of your organization in its ordinary course of business, I hereby give and grant to you for a period of ---- months from the date of this instrument and thereafter until this agreement is revoked by me by 10 days' notice in writing delivered to you, the exclusive right and authority to sell the property hereinafter described for the price and upon the terms hereinafter set forth. I hereby further agree upon the considerations herein mentioned, to pay you the regular real-estate board schedule of charges and/or rates of commission covering such transactions, as is now established by the Atlanta real-estate board of the City of Atlanta, in the State of Georgia, whether such sale be made by you or me, or any other person acting for me or in my behalf, upon the terms hereinafter mentioned, or upon any other terms acceptable to me; or if the property is afterwards sold within three months from the termination of this agency, to a purchaser to whom it was submitted by you during the continuance of said agency, and whose name or names have been disclosed to me. . . I grant you the exclusive for-sale sign privilege on said described property and agree to refer to you all inquiries which I may receive during the continuance of this agency." General and special demurrers and answer were filed by the defendant. The demurrers were overruled. On the trial the court directed a verdict for the plaintiff on the first count and for the defendant on the second count. The defendant here excepts to the overruling of her motion for a new trial and to the overruling of her demurrers.
1. Ground 2 of the demurrer, directed at paragraph 6 of count 1 should have been sustained. It is as follows: "Defendant demurs specially to that portion of paragraph 6 of count one of plaintiff's petition as follows: `. . petitioner discovered that said exclusive sale contract had been secured by defendant by false representation in that immediately thereafter said defendant sold said property to O. T. Walz and his wife, Mrs. Edith M. Walz for $6500, with full knowledge that the said O. T. Walz was the customer of petitioner and had been induced to purchase said property through the efforts of petitioner,' on the grounds: (a) that it alleges conclusions without facts alleged to support the conclusions; (b) that it is too general, vague, indefinite, and uncertain; (c) that it does not allege that defendant falsely represented to petitioner that defendant had decided to rent said property, and that petitioner believed such representation and acted thereon to his injury; and, (d) that it does not allege that defendant knew when she requested the surrender of the contract, that she would thereafter sell the property to said O. T. Walz and his wife, Mrs. Edith M. Walz." The allegation that petitioner discovered that the said exclusive sales contract had been secured by defendant by false representation, in that immediately thereafter said defendant sold said property, etc., is subject to demurrer for three reasons. (a) First, it is not an affirmative allegation that the contract was secured by false and fraudulent representations of intention to rent the property. It is a mere conclusion. It does not show what the plaintiff's idea of what the discovery of fraud is. What he believed to be discovery of a fraud might not have been what the law defines as fraud. (b) In the second place the general allegation of the fraudulent act yields to the specific allegation that the act was false because defendant thereafter sold the property. Doyal v. Russell, 183 Ga. 518, 533 ( 189 S.E. 32). The mere fact that the property was afterwards sold would not in and of itself show a fraudulent and false representation. (c) Third, it is not affirmatively alleged that the plaintiff relied on false and fraudulent representation in surrendering the contract. As to misrepresentation of intention being a fraud, see Floyd v. Morgan, 62 Ga. App. 711 (5) ( 9 S.E.2d, 717).
2. Ground 7 of the special demurrer, directed at paragraph 3 of count two and the second count as a whole, should have been sustained for the reason that a copy of the agreement is not attached to count two, the ground of the demurrer being as follows: "Defendant demurs specially to paragraph 3 of count two of said petition on the ground that it is too vague, general, indefinite, and uncertain; and upon the ground that it does not set forth whether said property was placed in petitioner's hands to sell by written agreement or by a verbal agreement, and if by written agreement, the agreement is neither incorporated in nor is a copy attached to said paragraph or to said count of said petition."
3. Ground 12 of the demurrer, directed at paragraph 7 of count two should have been sustained. The ground is as follows: "Defendant demurs to that part of paragraph 7 of count two of said petition which alleges: `. . that said defendant procured said contract by false representation in that immediately thereafter said defendant sold said property to O. T. Walz and his wife, Mrs. Edith M. Walz,' upon the grounds: (a) that it is a conclusion without facts to support it; (b) it does not allege what representation was false; (c) the mere fact that the defendant sold the property after a mutual rescission or termination of the exclusive sales contract does not require the conclusion that when defendant informed petitioner that defendant had decided to rent said property, she did not honestly and in good faith intend to rent the same. The representation that she intended to rent said property and that a subsequent decision to sell said property was made, are perfectly consistent and do not in any way illustrate any fraud or misrepresentation, and plaintiff does not allege that when defendant represented to plaintiff that defendant had decided to rent said property, she had not in fact made such decision." The ruling in division 1 (b) is applicable here. The other grounds of demurrer are without merit or are covered by the rulings above.
4. It is contended by the plaintiff that the petition shows on its face that the agreement to rescind the contract was without consideration and not binding. This position is not tenable. Mutual consent is a sufficient consideration. Code, § 20-905; Shoup v. Elliot, 192 Ga. 858 ( 16 S.E.2d 857); Crutchfield v. Dailey, 98 Ga. 462 ( 25 S.E. 526). If there was a mutual consent to rescind the contract, unaffected by fraud, the entire agreement became inoperative and there could be no action upon it.
The court erred in overruling the demurrers as shown in the opinion, and the further proceedings were nugatory.
Judgment reversed. Sutton, P. J., and Parker, J., concur.