Opinion
34152, 34158.
DECIDED SEPTEMBER 13, 1952.
Complaint; from Fulton Civil Court — Judge Lowe. May 2, 1952.
Frank A. Bowers, for plaintiff in error.
Houston White, Emory A. Schwall, contra.
Under the evidence and the law applicable thereto, the trial judge, before whom the case was tried without a jury, was authorized to find in favor of the defendant and did not err in overruling the plaintiff's motion for a new trial.
DECIDED SEPTEMBER 13, 1952.
John J. Vlass and Roy Dowdy, a partnership doing business as Vlass Dowdy Realty Company, filed this suit in the Civil Court of Fulton County against E. B. Walker and alleged substantially: (2) that the plaintiffs were duly licensed real-estate brokers; (3) that, prior to June 12, 1951, the defendant requested the plaintiffs to sell his dwelling, known as number 965 Howell Place S.W., Atlanta, Fulton County, for $8500 in cash; (4) that, on June 12, 1951, the plaintiffs secured Mrs. W. R. Corum as a purchaser who was ready, willing, and able to purchase said property for $8500 cash, and the plaintiffs, on said date drew up a contract between the defendant and Mrs. Corum, which agreement was signed by the defendant and Mrs. Corum, a copy thereof being annexed to and made a part of the petition; (6) that, after signing said contract, the defendant has failed and refused to consummate the sale, and has notified the plaintiffs that he would not sell the property according to the terms of the contract although the purchaser has, at all times since signing the contract, been ready, willing, and able to carry out her part of the contract; and (7) that, according to the terms of the said contract, the plaintiffs would have been entitled to a sales commission of 5% of the purchase price of $8500, to be paid them by the defendant upon closing the sale, and in breaching the terms of the said contract as aforesaid, the defendant has become liable to the plaintiffs for $425, for which sum they prayed judgment.
The defendant filed an answer, in which he denied paragraphs 3, 4, 6, and 7 of the petition, as alleged, and, for further answer, alleged that after signing said contract he requested the plaintiffs to release him from said contract, said request being made to John J. Vlass, one of the plaintiffs, who agreed to release the defendant from the contract provided the defendant would obtain the release of Mrs. Corum, whereupon the defendant did obtain the release of Mrs. Corum, releasing him from the contract, and he communicated this fact to the plaintiffs, Vlass, and offered to pay all expenses incurred by the plaintiffs in connection with the matter, but Vlass told the defendant that he did not owe the plaintiffs anything; and that the plaintiffs then returned the earnest-money check to Mrs. Corum; and the defendant alleged that the parties to said contract, having agreed to the releases as set forth above, thereby entered into a legal accord and satisfaction.
The case was tried before a judge of the Civil Court of Fulton County, without the intervention of a jury, and he found in favor of the defendant. The plaintiffs made a motion for a new trial, which was denied, and error is assigned on that judgment in the main bill of exceptions. The defendant filed an exception pendente lite to a statement or ruling in the judgment in the case, and he assigns error here in a cross-bill on such exception.
The trial judge was authorized to find from the evidence: that the defendant listed his property, known as number 965 Howell Place S.W., in Atlanta, Fulton County, Georgia, for sale at $8500 cash with the plaintiffs, licensed real-estate brokers, who procured Mrs. W. R. Corum, who was ready, able, and willing to purchase the property at the price fixed by the defendant; that the plaintiffs then drew up a contract between the defendant and Mrs. Corum for the sale of the property, and said contract was signed by Mrs. Corum on June 12, 1951, and thereafter, on the same day, was signed by the defendant; that the following special stipulation, "Seller to have 30 days free rent from closing date of sale. Seller agrees to pay buyer $65.00 per month rent until September 1st, 1951," was not in the contract when Mrs. Corum signed it, but was written into the contract at the time it was signed by the defendant, Walker, but the contract was not carried back to Mrs. Corum for her signature or approval, nor was it delivered to her after this stipulation was inserted therein; that, on the following day, after these parties had signed the contract, the defendant communicated with the plaintiff, John Vlass, over the telephone and told him that he did not want to sell his house at 945 Howell Place S.W. and wanted to be relieved from the contract, and Vlass told the defendant that, if he (the defendant) could get Mrs. Corum to release him from the contract, the plaintiffs would agree to its voluntary rescission; that the defendant procured an agreement from Mrs. Corum to rescind the contract and so informed the plaintiff, Vlass, who stated that, so far as he was concerned, the contract was rescinded and the whole thing settled, and that the defendant owed the plaintiffs nothing, stating at the time that the plaintiffs were a young from and wanted to make friends instead of enemies.
The trial judge found that the stipulation, "Seller to have 30 days free rent from closing date of sale. Seller agrees to pay buyer $65.00 per month rent until September 1st, 1951," was written into the contract after it was signed by Mrs. Corum, and that it was not resubmitted to her after that, and consequently the contract was incomplete as it was never agreed to by both parties, and could be rescinded as there was no meeting of the minds of the parties on all of its terms. Code § 20-108 provides: "The consent of the parties being essential to a contract, until each has assented to all the terms the contract is incomplete; until assented to, each party may withdraw his bid or proposition."
It appears from the evidence that the contract was rescinded by the mutual consent of all the parties, that is, by Mrs. Corum, the defendant, and the plaintiffs, and that the plaintiff voluntarily returned the earnest money. Code § 20-905 is as follows: "A rescission of the contract by consent, or a release by the other contracting party, is a complete defense." The mutual consent of the parties is a sufficient consideration to rescind the contract. Hardy v. Maddox, 72 Ga. App. 707, 711 ( 34 S.E.2d 903); Manry v. Selph, 77 Ga. App. 808 ( 50 S.E.2d 27); Riggins v. Pomona Products Co., 82 Ga. App. 636 ( 61 S.E.2d 682); Crutchfield v. Dailey, 98 Ga. 462 ( 25 S.E. 526); Shoup v. Elliott, 192 Ga. 858, 861 ( 16 S.E.2d, 857); Cohen v. Cohen, 200 Ga. 33, 36 ( 35 S.E.2d 908). In the case of Girardeau Saunders v. Gibson, 122 Ga. 313 ( 50 S.E. 91), it appears that the owner of certain real estate placed it in the hands of a real-estate broker to sell at $8000. The broker found a purchaser who agreed to pay this price, and a deed was executed by the owner to the purchaser but was not delivered, for the reason that the purchaser declined to complete the sale until the taxes, which had been assessed before the trade, were paid. The owner declined to pay the taxes; and, after much discussion between him and the purchaser and the broker, they agreed that the trade be canceled. It was held in the opinion in that case: "If, after the parties were brought together, there was a misunderstanding as to which one should pay the taxes, and the broker agreed with the parties that the trade be declared at an end, we think this amounted to a waiver of his right to commissions, or rather to a consent on his part that he was not entitled to them. If, instead of giving his consent, he had objected to the rescission, he would have been clearly entitled to his commissions; but when he agreed with the parties that there was no trade on account of the misunderstanding stated, he waived the right to his fee."
Under the evidence and the law applicable thereto, the trial judge, before whom the case was tried without a jury, was authorized to find in favor of the defendant, and he did not err in denying the plaintiff's motion for a new trial.
Judgment affirmed on the main bill of exceptions, case number 34152; and the cross-bill, case number 34158 is dismissed. Felton and Worrill, JJ., concur.