Opinion
33386.
DECIDED MARCH 15, 1951. REHEARING DENIED MARCH 28, 1951.
Complaint; from Fulton Civil Court — Judge Robert Carpenter. October 30, 1950.
Louis M. Tatham, J. Richmond Garland, for plaintiffs in error.
Morris M. Herzberg, Milton G. Farris, contra.
1. The motion to dismiss is denied for the reasons set out in the opinion.
2. ( a) A petition which seeks to recover commissions for the sale of real estate only is fatally defective unless the petition alleges that the plaintiff has complied with the provisions of the law as it pertains to realestate salesmen or brokers.
( b) Where the petition is grounded upon a single contract for the sale of real estate and personalty it is good as against a general demurrer.
The amount of the recovery is a question of fact.
DECIDED MARCH 15, 1951. REHEARING DENIED MARCH 28, 1951.
W. M. Kilgore, doing business as West End Brokers, and Wm. H. Davis, doing business as Davis-Van Sant Company, brought suit against R. M. Moreland and J. R. Rankin for the recovery of $1500 for brokers' commissions. The suit was brought in the Civil Court of Fulton County in two counts. Counts one and two are identical with the exception that the allegations of conspiracy and fraud are omitted from count two. There was attached to and made a part of each count a copy of the contract between the parties. A section of the contract which we deem material to state is as follows: "The undersigned buyer agrees to buy, and the undersigned seller agrees to sell, through Davis-Van Sant Company and West End Brokers, agents, for Mr. Rankin, all that tract of land in Fulton County, Georgia, and having situated thereon a brick veneer building; a concrete-block store building (including all stock and fixtures contained therein, excepting an ice cream refrigerated box and penny candy machine), also a gasoline and oil service department (including all stock and fixtures, excepting gas storage tanks in ground, air compressor, grease lift, and gasoline pumps; also a `pool room' department, but the pool table now located therein is the property of a `dealer' who has said table on premises under a commission arrangement; said improvements being situated on a tract of land of approximately 5 3/4 acres in area, and being known as `Rankin's Store' at Tell, Georgia, including all lighting fixtures attached thereto, and all heating, water heating, and plumbing equipment therein." Then follow the terms of payment and an allegation in the petition that the defendants agreed to pay the plaintiff 10% commission on the sale price of $15,000. The suit was filed to the August term, 1950, of the Civil Court of Fulton County. On October 30, 1950, the defendants filed in the office of the clerk of the said court, a motion to dismiss, omitting the formal parts, as follows: "(a) That count 1 of said petition sets forth no cause of action; (b) that count 2 of said petition sets forth no cause of action." On the same date the motion was filed the following order was passed on the written motion: "After argument, the above motion is overruled and denied. [signed] Robert Carpenter, Judge Civil Court of Fulton County." In due course, the defendants assigned error in a bill of exceptions to this court to the effect that the court committed reversible error in overruling their motion to dismiss. After the filing of the bill of exceptions in this court, the plaintiffs made a motion to dismiss the bill of exceptions on the ground that there was no proper assignment of error here for the reason that the motion to dismiss was not set out in the bill of exceptions nor was a copy thereof attached to the bill of exceptions and made a part thereof. Therefore, there are two questions to be determined here: First, should the bill of exceptions be dismissed because it is insufficient as a matter of law to give this court jurisdiction, and second, did the court err in overruling the motion to dismiss? We will deal with them in their order.
1. A motion to dismiss a plaintiff's petition in the trial court is in the nature of a general demurrer. Davis v. Terrell, 70 Ga. App. 478 ( 28 S.E.2d 590). Counsel for the plaintiffs in their motion to dismiss rely chiefly upon the case of Talmadge v. Seymour, 170 Ga. 22(1) (152 S.E. 96), and the case cited therein, Sayer v. Brown, 119 Ga. 539 ( 43 S.E. 649). We do not think these cases are authority for the contention of the movants to dismiss the bill of exceptions. It will be noted that in the Talmadge case counsel asked permission to file an additional demurrer and the court refused to allow it to be done. Thereupon, a demurrer was written out and filed with the clerk. We have consulted the original record and find that the court never did pass upon it. The original record in that case reveals that the demurrer was never made a part of the record and the Supreme Court held that it could not be considered as a part of the record and could not be brought up and considered as such. In that case, of course, the proper way would have been to set out the purported demurrer in the bill of exceptions or to have attached it as an exhibit to the bill of exceptions. The case of Sayer v. Brown, is not in point because it involved an amendment which the court never allowed and it did not become a part of the record, and for that reason could not be considered as such, but the amendment should have been set out in the bill of exceptions or attached thereto as a part of it. The assignment of error in the bill of exceptions on the motion now under consideration is as follows: "On October 30, 1950, the defendants filed in the Civil Court of Fulton County, Georgia, a motion to dismiss the petition of plaintiffs. A hearing was duly had on said motion before the Honorable Robert Carpenter, a judge of said court, and after argument thereon and before the verdict of the jury was returned, the court on October 30, 1950, dismissed and overruled said motion and rendered a judgment thereon contrary to plaintiffs in error. Whereupon, plaintiffs in error excepted and now except and assign the same as error, and contend that said judgment was contrary to law." This court in the case of Holloman v. City of Tifton, 3 Ga. App. 293 (1) ( 59 S.E. 828), Judge Powell speaking for the court, stated: "A bill of exceptions reciting that the trial judge sustained a general demurrer to the petition, and alleging that `to this order sustaining said demurrer plaintiff excepted, and now excepts and assigns the same as error,' is not subject to dismissal on the ground that it contains no sufficiently definite assignment of error." See citations therein. In a more recent case, Greene v. Orr, 75 Ga. App. 673 ( 44 S.E.2d 273), in division 1, this court said: "The motion to dismiss the writ of error is denied. A bill of exceptions reciting that the court erred in overruling the general and special demurrers, and that `to this ruling the plaintiff in error excepted and now excepts and assigns the same as error upon the ground that it was contrary to law,' contains a sufficient assignment of error where the demurrers themselves appear in the record." See citations therein. We have examined the original record in the Greene case and it is practically on all fours with the record in the instant case. The motion to dismiss is denied.
2. (a) We come next to consider whether the court erred in overruling the motion to dismiss the petition. The defendants complain that the overruling of their motion to dismiss is reversible error because there is no allegation in either of the counts that the plaintiffs had complied with the license law as required by the Code, § 84-1413 and section 2 of the act of 1949, amending the act creating the Real Estate Commission (Ga. L. 1949, pp. 943, 945) and cite in support thereof Mayo v. Lynes, 80 Ga. App. 4 ( 55 S.E.2d 174). Counsel cited to the same effect, Hazlehurst v. Southern Fruit Distributors, 46 Ga. App. 453 ( 167 S.E. 898); Lee v. Moseley, 40 Ga. App. 371 ( 149 S.E. 808); Padgett v. Silver Lake Park Corp., 168 Ga. 759 ( 149 S.E. 180).
(b) While the contentions of the defendant are correct if the contract between the parties had been for the sale of real estate only, such does not apply to the facts of the instant case for the reason that the contract here was for the sale of realty and personalty as shown by the contract. The motion to dismiss was in the nature of a general demurrer. Even if it be conceded that the plaintiffs were not entitled to recovery of the commissions on the sale of the real estate, we find no law that would prevent the plaintiffs recovering a commission for the sale of the personalty involved. In the case of Travelers Insurance Co. v. Harrington, 75 Ga. App. 759, 762 ( 44 S.E.2d 457) this court held: "The only question for determination by this court is whether or not the petition is sufficient to resist a general demurrer. While considering the issues here involved, we shall bear in mind the rule that a general demurrer to the petition should not be sustained and the suit dismissed because the plaintiff would not be entitled to recover all he asks; if the petition sets up a good cause of action as to any portion of his demand, it is sufficient to resist a general demurrer. Douglas, Augusta, c. Railway Company v. Swindle, 2 Ga. App. 550 ( 59 S.E. 600)." See also in this connection, Hoffman v. Louis L. Battey, Post Number 4, American Legion, 74 Ga. App. 403(5) (39 S.E.2d, 889): "On general demurrer, a petition setting out a cause of action as to some of the damages claimed should not be dismissed because some of the damages sought may not be appropriate. This is a matter for special demurrer; and a special demurrer, being a critic must itself be perfect and point out with particularity which of the damages sought are objectionable and for what reason." In Bowen v. Samuels, 204 Ga. 718, 720 ( 51 S.E.2d 667), the Supreme Court said: "With reference to the general demurrer, the question presented to this court is, did the petition set forth a cause of action for any of the relief sought? `Where the demurrer going to the whole bill is overruled, it is an adjudication that the complainant is entitled to some relief, but the extent of the relief is still an open question.'"
The court did not err in overruling the motion to dismiss.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.