Opinion
40118.
DECIDED MAY 14, 1963. REHEARING DENIED MAY 29, 1963.
Action for commission. Cobb Superior Court. Before Judge Manning.
Fine Rolader, for plaintiff in error.
Luther C. Hames, Jr., contra.
1. A real estate broker does not earn a commission, absent other facts:
(a) On an offer to purchase not in accordance with terms of the real estate listing;
(b) For a sale made after the termination of his agency.
2. The charge was not erroneous for any reason assigned.
DECIDED MAY 14, 1963 — REHEARING DENIED MAY 29, 1963.
This is a suit for a real estate broker's commission. In the middle of December, 1960, Goss Padgett (defendant) orally listed certain property with Sam Schaffer d/b/a A S Realty Company (plaintiff). No time limit for the listing was discussed but the selling price set was $34,000. Padgett told Wolbe, a salesman in Schaffer's office, that W. Frank Gordy owned adjacent property and had expressed an interest in his property. Wolbe contacted Gordy, showed the property to him and produced on December 31, 1960, a written offer from him for $17,000. The offer was rejected by Padgett and Wolbe continued to talk with both Padgett and Gordy. On February 7, 1961, Padgett lowered his price to $30,000 and Wolbe again saw Gordy, who refused to buy at that price.
Wolbe continued his efforts to sell to Gordy until August of 1961. Padgett then called Wolbe, who reported no further offer from Gordy. Padgett testified that he then told Wolbe that another broker, one Sandman, had approached him saying that he thought he could sell the property and that unless Wolbe could effect a sale within another day he would withdraw the listing with him and give the other an exclusive one. Wolbe called back later saying that Gordy would not make an offer and that Padgett could "Go ahead and let [the other broker] have it." Padgett proceeded to do so at a price of $28,500, and a few days later Sandman was able to complete a sale to Gordy at that figure. Wolbe admitted that Padgett had called him on the telephone about the matter but denied that he had agreed that the listing might be withdrawn from Schaffer and placed with Sandman, and asserted that he put Padgett on notice that if the property should be sold to Gordy, he would expect to be paid a commission. Schaffer, with whom Wolbe worked, sued Padgett to recover a commission of $2,500.
The trial resulted in a verdict for the defendant. The exceptions are to the overruling of a motion for judgment notwithstanding the verdict and the amended motion for new trial.
1. The general grounds of the motion for new trial and the motion for judgment n.o.v. involve the same principles and will be considered together. There are two reasons why the plaintiff's position on these grounds is without merit. The applicable statute, Code § 4-213, sets out that "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."
(a) The plaintiff never produced an offer from Gordy which matched or exceeded the eventual sales price of $28,500. The only offer made through them was for $17,000. Even a slight variation from the owner's terms will prevent the agent from recovering, and this variation was substantial. See Thornton v. Lewis, 106 Ga. App. 328 (1) ( 126 S.E.2d 869).
(b) The law does not leave the broker without protection where he locates a prospective buyer, as the owner must exercise good faith. An agency for an unspecified time is an agency for a reasonable time, the latter being a jury question. Thornton v. Lewis, 106 Ga. App. 328, 331, supra, and citations. In the present case, however, the jury was authorized to believe Padgett's version of his telephone conversation with Wolbe (set out in the statement of facts), and conclude that the plaintiff's agency for the defendant had been ended after Wolbe was unable to procure another offer from Gordy. The effect of the jury verdict is that the agency had been voluntarily terminated by the agreement of the parties. See Girardeau Saunders v. Gibson, 122 Ga. 313 ( 50 S.E. 91).
There was no error in overruling the motion for judgment n.o.v. or the general grounds of the motion for new trial. Special ground 8 of the amended motion is a restatement of the same argument and was properly overruled.
2. The remaining special grounds specify errors in the charge, none of which are meritorious, as follows:
(a) Two grounds (5 and 6) complain that the court charged Code § 4-213, referred to above. The statute was applicable.
(b) Ground 4 complains of a charge on the preponderance of the evidence being "considered sufficient to produce a conviction." In addition to having been clearly stated in another portion of the charge, we do not see how the charge could have misled the jury to plaintiff's harm.
(c) Failure to charge certain principles without request is the complaint in ground 7. Suffice it to say that the principles were generally covered in other portions of the charge.
Judgment affirmed. Felton, C. J., and Russell, J., concur.