Opinion
47605.
SUBMITTED NOVEMBER 6, 1972.
DECIDED JANUARY 24, 1973.
Action for broker's commission. DeKalb State Court. Before Judge Smith.
Hansell, Post, Brandon Dorsey, W. Lyman Dillon, for appellant. John C. Joyner, for appellee.
1, 2, 3. Under the terms of a written contract of employment, plaintiff, on undisputed facts, has shown her right to judgment for real estate sales commissions.
SUBMITTED NOVEMBER 6, 1972 — DECIDED JANUARY 24, 1973.
This case involves a suit by plaintiff to recover real estate sales commissions allegedly due for the sale of two parcels of real estate under the terms of a contract of employment as a salesman with defendant, a real estate broker. Plaintiff's motion for summary judgment was granted, the defendant's denied, and the denial was certified for review. There is no dispute as to the facts. The pertinent provisions of the employment contract state:
"(4) Commissions: All commissions resulting from real estate transactions procured by salesman shall be divided between company and salesman on a basis of 30 percent of the gross commission to salesman ... No commission shall be considered earned, or payable, to salesman until the transaction has been completed and the commission collected by company and check is collected by company bank;..."
Plaintiff was employed by defendant from about October 1, 1970, until May 14, 1971. While so employed the plaintiff was contacted by a Mr. Moody who was in the market for the purchase of a home. The plaintiff showed several houses to Moody and the latter executed a sale contract prepared by plaintiff on a home in which the seller was the defendant. From that point forward financing difficulties developed in that Moody was unable to obtain a loan on the property in the amount specified in the contract. At least five different contracts concerning the sale of this particular property by this buyer were executed while plaintiff was in the employ of defendant. The only substantial variance in these contracts was the amount of the loan that Moody was required to obtain for the purchase. Plaintiff left the employment of the defendant voluntarily on May 14, 1971. In September, 1971, the sale of this property was finally closed under a contract substantially the same as the first one prepared by plaintiff. During the period of time that plaintiff was acting as real estate salesman for the defendant, a Mr. Bird, owner of an undeveloped lot, gave plaintiff an exclusive listing to sell the property. Plaintiff showed the property to Mr. Tucker and a contract for the purchase of the property was executed. This contract specified that the sale would be closed on May 31, 1971. The sale did not close on that date but did close between these same parties sometime in June, 1971, again at a point in time after plaintiff left the service of defendant. Defendant in its answer admitted receiving commissions on the sale on both properties.
1. It is contended by defendant that the terms of the contract conclusively establish that plaintiff is not entitled to the commissions on the sales of the properties involved since plaintiff voluntarily terminated her relationship with defendant on a date prior to the time that the sales were completed. The contract, however, specifies that the commission is payable upon real estate transactions "procured" by the plaintiff when the defendant has collected the commission. The undisputed evidence shows that the efforts of the plaintiff were the efficient and the procuring cause of both transactions. See Arnold v. Jowers, 102 Ga. App. 29, 30 ( 115 S.E.2d 623). While it is true that the plaintiff was no longer associated with defendant at the time the sales commissions were paid, this will not defeat plaintiff's claim. A contract by which one employs another to sell real estate must be construed according to its particular stipulations. Humphries Jackson v. Smith, 5 Ga. App. 340, 343 ( 63 S.E. 248). There is nothing in the contract which by any reasonable construction implies that the plaintiff, in order to be entitled to commissions on sales for which she was the procuring cause, must be still in the employ of the defendant at the time the broker receives the full commission. Plaintiff's rights to the commissions vested when she performed by procuring the buyers.
2. Code § 4-213 provides in part: "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." Defendant maintains that since Moody could not obtain a loan to finance the purchase of the property, plaintiff had not found an "able" purchaser. "Able" means financially able. Shaw v. Chiles, 9 Ga. App. 460 ( 71 S.E. 745). This statute has no application in this situation as plaintiff is a real estate salesman in the employ of the defendant, a real estate broker, and plaintiff's claim is based entirely upon the written contract of employment with defendant. See Roberts v. Prater Forrester, 29 Ga. App. 245 (1) ( 114 S.E. 645) and Adams Loan c. Co. v. Dolvin Realty Co., 48 Ga. App. 183 (2) ( 172 S.E. 606). But even if the statute did apply, the buyer procured by plaintiff ultimately became financially able and purchased the property under a sale contract substantially identical to that obtained by plaintiff's efforts.
3. There is no merit in the contention that plaintiff's claim for her commission on the Bird property must be denied because of the fact that the sale was not consummated on or before the contract closing date of May 31, 1971. Again plaintiff's claim for commission is based upon her contract of employment with defendant. Plaintiff procured this buyer and defendant received the commission for the sale. The fact that the sale was not closed on the sale contract date is immaterial insofar as plaintiff's claim is concerned. Her entitlement to a commission is by reason of the terms of her contract of employment with defendant and not by an executory contract of sale between third parties. The property was purchased by a buyer procured by plaintiff and defendant received his broker's commission. That is all that was necessary for plaintiff to become entitled to her commission.
Judgment affirmed. Evans and Stolz, JJ., concur.