Opinion
35921.
DECIDED DECEMBER 5, 1955.
Broker's commission. Before Judge Mitchell. DeKalb Civil Court. August 11, 1955.
William H. Barber, Edward D. Wheeler, for plaintiffs in error.
Davis Stringer, contra.
1. The petition of the real-estate broker, which alleges in substance that she was employed as the seller's agent to sell certain property; that she procured a purchaser ready, willing and able to purchase on the terms stipulated and who actually purchased such property, and that thereafter the seller refused to pay the commissions earned, sets out a cause of action, and was not subject to general demurrer.
2. The allegations in the petition that a contract of sale entered into between the plaintiff broker, the defendant seller and the purchaser approximately six weeks before the actual sale was canceled by the seller during the interim, as a result of which the plaintiff was, under the terms of the contract of sale, forced to return the deposit of earnest money to the purchaser, contain no facts authorizing an inference that the broker was not subsequently entitled to commissions as the procuring cause of the sale which was thereafter consummated.
3. It is permissible in an action on an express contract to amend by adding a second count seeking recovery on a quantum meruit basis.
DECIDED DECEMBER 5, 1955.
This is an action for real-estate broker's fee, here on exception of the defendant seller to the judgment of the court overruling the general demurrers to the petition. The allegations of the petition essential to plaintiff's case are the following: that plaintiff is a duly licensed real-estate agent; that on January 6, 1955, she entered into an oral agreement with the defendants under the terms of which she was given an open listing on certain described real estate; that her commission was to be a stated percentage of the selling price; that pursuant to such contract she advertised the premises; that as a result of such advertisement she showed the property to Dr. and Mrs. Bern, prospects obtained by her through such advertisement; that the asking price was originally $22,000 but was subsequently reduced to $21,000; that on April 1, 1955, Dr. and Mrs. Bern purchased the property direct from the defendants, but plaintiff was not notified of the closing and has not received her commission. The amendment to paragraph 11 of the petition is as follows: "The amounts and terms upon which the sale was consummated between said parties were the amounts and terms satisfactory to defendants within the terms of said agency agreement, and they were substantially the same as those negotiated by plaintiff as agent. The defendants in excluding plaintiff and selling direct to the customer which she procured benefited by plaintiff's acts, efforts and negotiations in that they received and had full knowledge of the amounts and terms upon which said purchasers were ready, willing and able to pay for said property, and said acts and negotiations were the procuring cause and culminated in the sale of said property as aforesaid."
In addition to the foregoing, the petition as amended revealed these further facts: the purchasers first offered to pay $21,000 for the property, assume a loan of approximately $13,500 and pay $2,000 in cash, balance to be in the form of a second loan between purchaser and seller. This offer was accepted provided the cash payment be increased. Purchasers then increased their offer to $3,000 cash; a contract to this effect was drawn up and signed by all parties to the transaction and a copy of this contract, dated February 21, 1955, is attached to the petition and contains the provision that "this contract constitutes the sole and entire agreement between parties and no modification hereof shall be binding unless attached hereto and signed by each; and no representations, promises or inducements shall be binding upon either party or agents except as herein stated." Notwithstanding this provision, it is alleged that at the time the contract was signed by the seller she requested and was granted a two-week period in which to find another purchaser who would increase the selling price and cash payment; that the purchasers put up a $500 deposit with the plaintiff broker; that during the two-week period the purchasers went to the defendant's home for the express purpose of seeing whether they would be willing to buy the furniture, and the next day the plaintiff was notified by the seller that she would not go through with the sale because she needed more cash money; that the plaintiff returned the $500 to the purchasers but continued to negotiate and attempt to consummate a sale of the property between the parties, and that the agency contract was never revoked prior to the closing of the transaction.
1. It is stated in Mendenhall v. Adair Realty c. Co., 67 Ga. App. 154, 158 ( 19 S.E.2d 740) as follows: "It is a recognized rule that where the owner of property has listed it with a real-estate broker to be sold, and the broker procures a prospective purchaser, and the owner with knowledge of this fact intervenes or sells the property to the customer or prospective purchaser procured by the broker, an inference is authorized that the broker has earned a commission and can recover it from the owner." Since the essential allegations of the amended petition, as set out in this statement of facts, affirmatively allege such a situation, the overruling of the general demurrer to the petition was not erroneous.
2. It is contended, however, by the plaintiffs in error that the petition fails to set forth a cause of action because, by setting up the contract of sale which was actually signed by the parties and then alleging that, upon the defendant seller stating that she would not go through with it, the plaintiff returned the deposit to the purchasers, the petition affirmatively shows that all the parties agreed to a rescission of the contract and accordingly the plaintiff cannot recover. Vlass v. Walker, 86 Ga. App. 742 ( 72 S.E.2d 464), and Girardeau Saunders v. Gibson, 122 Ga. 313 ( 50 S.E. 91), do not sustain such a contention, as in those cases there was no eventual sale of the property involved. It is questionable whether the act of the broker in returning the earnest money to the purchaser would have amounted to an agreement to rescind in any event, since the contract provides that in case the sale is not consummated "for reasons other than the default of buyer" the earnest money is to be refunded to the buyer, and such would have been the obligation of the broker in any event. But the broker's right to commission did not rest upon the contract of sale between the purchaser and the seller, but rested instead upon the oral agreement between the broker and the seller plus a completion of that agreement on the part of the broker by finding a purchaser ready, willing and able to buy at the price and on the terms stipulated. The contract of sale is not essential to the right to recovery, although it may be relevant and material as evidencing facts necessary to be shown before such recovery may be had. Reid v. Morrison, 31 Ga. App. 613 (6, 7) ( 121 S.E. 860). If the rescission of the contract of sale had been had with the consent of the broker, and no new agreement had thereafter been entered into, the plaintiff, under the authority of the Vlass and Girardeau cases, supra, would not be entitled to recover. The petition alleges, however, that during the period when the plaintiff was being retained as the defendant's agent to sell the property in question, the property was in fact sold, under terms substantially the same as those contained in the agency agreement, to prospects procured by the plaintiff. The contract of sale is strong evidence of the fact that purchasers were in fact procured by the plaintiff since the broker's right to commissions was expressly recognized therein. Within six weeks thereafter the sale was actually consummated between the same parties but the broker's right to commissions was not recognized. Accordingly, the allegations concerning the contract of sale, while not essential to the cause of action, are material and relevant on the question, among others, of whether the broker was in fact the procuring cause of the sale and as such entitled to commissions.
3. The petition as amended is in two counts, one declaring upon an express contract and the other on a quantum meruit. That this is permissible pleading, see Kraft v. Rowland Rowland, 33 Ga. App. 806 (2) ( 128 S.E. 812). The plaintiff does not in the same count seek recovery under an express contract and on quantum meruit, and the petition was accordingly not subject to demurrer on this ground.
The trial court did not err in overruling the general demurrers to the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.