Summary
In Woodall, the broker was hired by two separate landowners to sell their land, which tracts were located near to each other.
Summary of this case from Clayton McLendon, Inc. v. Judge Co.Opinion
41454.
ARGUED SEPTEMBER 13, 1965.
DECIDED JANUARY 28, 1966. REHEARING DENIED FEBRUARY 15, 1966.
Action for real estate commissions. Fulton Civil Court. Before Judge Wright.
Schwall Heuett, Emory A. Schwall, for plaintiff in error.
Hansell, Post, Brandon Dorsey, Charles E. Watkins, Jr., McChesney H. Jeffries, contra.
1. (a) In order to state a cause of action based on a conspiracy to deprive plaintiff of commissions allegedly earned on a sale of real estate, it is essential that the petition allege that the plaintiff was the procuring or efficient cause of the sale.
(b) To withstand a general demurrer it is essential for a petition either (1) to allege the ultimate fact or (2) to allege facts from which the inference of the ultimate fact is demanded. It is not enough that facts are pleaded from which inferences may be drawn of the ultimate fact; rather it is essential that the pleaded facts must demand that inference.
ARGUED SEPTEMBER 13, 1965 — DECIDED JANUARY 28, 1966 — REHEARING DENIED FEBRUARY 15, 1966 — CERT. APPLIED FOR.
C. B. Woodall, Jr. d/b/a Woodall Realty Co. sued John N. McEachern, Jr., The First National Bank of Atlanta, John R. Maddox and Dickey-Mangham Co., Inc. to recover real estate commissions allegedly earned by plaintiff and in addition sought punitive damages and attorney's fees.
Appeal is brought to the judgment of the trial court sustaining the general demurrers of the several defendants and dismissing the petition.
The petition alleged as follows:
"7. That in April 1964, Mrs. Joanne Fulwiler, a duly licensed real estate agent operating through petitioner, learned that defendant John N. McEachern, Jr., was interested in purchasing some farm property in Fulton County. Whereupon said Mrs. Fulwiler and Robert M. Bush, also a licensed real estate agent operating through petitioner, contacted Mr. McEachern and took him and his wife on an expensive tour of farm property located in North Fulton County.
"8. One of the farm properties shown to Mr. and Mrs. McEachern was a farm known as the Cravey Farm which was owned or controlled by Zack D. Cravey, Jr., and Zack D. Cravey, Sr. Subsequent to seeing the Cravey Farm, the McEacherns were also shown a farm known as the Ponder Farm.
"9. After seeing the Ponder Farm, Mr. and Mrs. McEachern requested said Robert M. Bush and Mrs. Fulwiler to investigate said property further and to negotiate with the owners in order for the McEacherns to purchase same.
"10. That within a few days thereafter, petitioner, said Robert M. Bush and Mrs. Fulwiler went to the Ponder property and talked with Mr. Ponder, the husband of Mrs. Mary E. Ponder the owner, and arranged for the McEacherns to inspect the property, including the main residence house located thereon.
"11. That at all times both defendant McEachern and his wife instructed and cautioned petitioner and his agents not to divulge to any prospective sellers of farm property Mr. McEachern's name as both Mr. and Mrs. McEachern stated they feared the knowledge of the identity of the prospective purchasers would cause the purchase price to be raised.
"12. Petitioner at all times complied with defendant McEachern and his wife's said request and did not divulge Mr. McEachern's name to any prospective seller until the McEachern's were actually taken on the Ponder property and introduced to Mr. Ponder.
"13. That at the commencement of these negotiations defendant McEachern and his wife advised petitioner and his agents that defendant The First National Bank of Atlanta, acted as trustee and agent for Mr. McEachern; that the McEacherns relied on the advice of said Trust Department of The First National Bank of Atlanta, and particularly the advice of Trust Officer C. Trippe Slade; and that defendant McEachern wanted said Trust Officer and The First National Bank of Atlanta to approve any purchase made.
"14. That following a detailed inspection of the Ponder property by Mr. and Mrs. McEachern in the company of petitioner and his said agents Robert M. Bush and Mrs. Joanne Fulwiler, defendant McEachern and his wife requested that the property be inspected by said C. Trippe Slade, Trust Officer of the First National Bank of Atlanta.
"15. That during the week of April 20, 1964, petitioner, his said agents Robert M. Bush and Mrs. Joanne Fulwiler, defendant McEachern and his said wife, and C. Trippe Slade, Trust Officer of Defendant The First National Bank of Atlanta, went to the Ponder property and made an extensive tour thereof, including the residence house, at which time said Trust Officer expressed approval of the proposed purchase of said property.
"16. That both before and after defendant McEachern decided to purchase the Ponder property, he continued to look at the Cravey property with petitioner and his said agents, and to discuss with them the possibility of his purchasing same and joining it to the Ponder property.
"17. Petitioner, through his agent Robert M. Bush had obtained a listing of the Cravey property from owner Zack D. Cravey, Sr., some weeks prior to the time it was shown to the McEacherns, at which time said Zack D. Cravey, Sr. had authorized petitioner, through his said agent, to show said property and to offer same for sale at a purchase price of $1100.00 per acre.
"18. Said agent Robert M. Bush obtained a plat of the property known as the Cravey property from Zack D. Cravey, Jr., and made a tracing of said plat of the Cravey property, legal title to which was actually vested in Zack D. Cravey, Sr. and a Cravey family holding corporation known as F. W. Corporation.
"19. That before showing the McEacherns the Cravey property, petitioner through his agent Mrs. Joanne Fulwiler obtained permission to show said Cravey property from Zack D. Cravey, Jr. without revealing the name of the prospective purchaser.
"20. That petitioner's said agent Robert M. Bush gave to the McEacherns a copy of his tracing of the plat of the Cravey property and diagrammed thereon a manner in which the Cravey property could be joined to and connected to the Ponder property if same were acquired by defendant McEachern.
"21. That both defendant McEachern and his said wife discussed at length the possibility of acquiring the Cravey property and at all times in such discussions cautioned petitioner and his said agents not to advise the prospective sellers of the Cravey property or any other adjoining properties that the McEacherns were interested in the property for fear the price would be raised.
"22. That at the time said C. Trippe Slade, Trust Officer of The First National Bank of Atlanta inspected the Ponder property with defendant McEachern and his said wife as alleged herein, petitioner and his said agents took said Trust Officer on an inspection of the Cravey property and discussed at length and in great detail the possibility of the purchase of the Cravey property by defendant McEachern and joining or connecting same to the Ponder property.
"23. That thereafter, on April 29, 1964, defendant The First National Bank of Atlanta through and by its said Trust Officer C. Trippe Slade, executed a contract to purchase the Ponder property for a purchase price of $225,000.00 through petitioner as agent, a copy of which contract is hereto attached marked Exhibit `A' and made a part hereof.
"24. After the execution of said contract marked Exhibit `A' and attached hereto, petitioner and his said agents continued in their efforts to sell the Cravey property to defendant McEachern.
"25. That defendant McEachern's wife came to the office of petitioner on at least two occasions, during which petitioner or his agents discussed with her the acquiring of said Cravey property in behalf of her husband.
"26. That at all times in the course of said discussions, petitioner and his said agents were instructed and cautioned not to reveal to anyone, particularly the prospective seller, that defendant McEachern was interested in acquiring said property, for fear that knowledge of his name by any prospective seller, and particularly by the Craveys, would cause the purchase price to be raised.
"27. That the actual sale of the Ponder property was closed on the 11th day of June, 1964, at which time legal title to the property was taken in John N. McEachern, Jr. though the sales contract indicated The First National Bank of Atlanta as purchaser.
"28. That following the closing of said sale, petitioner's said agent Robert M. Bush was contacted by said C. Trippe Slade, Trust Officer of defendant The First National Bank of Atlanta and requested to negotiate to obtain a satisfactory price for the purchase of certain property belonging to a Mr. Brasselton of San Francisco, California, which property was situated immediately in between and adjacent to both the property Mr. McEachern had already purchased and the Cravey property.
"29. Petitioner's said agent contacted the owner of the Braselton property, obtained a sale price and quoted same to said Trust Officer and was subsequently advised by said Trust Officer that the purchase price quoted was not acceptable.
"30. On June 24, 1964, the wife of defendant McEachern, came to petitioner's office and discussed the possibility of petitioner obtaining a six months' option in behalf of defendant McEachern for the purchase of the Cravey property, which option was to be obtained without disclosing the name of the purchaser.
"31. At said time a tracing of the plat of the Cravey property and a tracing or drawing of a plat of the Ponder property was delivered to said wife of defendant McEachern, which plat showed the proximity of each of said properties to the other, and she requested that petitioner contact her and her husband on the following week with regard to the purchase, or obtaining an option for the purchase of said Cravey property.
"32. That subsequently, on or about the first week in July 1964, petitioner was informed abruptly by the McEacherns that they were not at that time interested in purchasing the Cravey property.
"33. That immediately prior to or at about the same time that petitioner was showing said Cravey property and other farm properties as herein alleged, said Trust Officer advised defendant John R. Maddox, who is related to a Senior Vice-President of defendant bank and is an agent of Dickey-Mangham Co., Inc. that the McEacherns were interested in acquiring farm property.
"34. That on the day that petitioner and his said agents showed the Cravey property and the Ponder property to defendant McEachern, his wife and said C. Trippe Slade, Trust Officer of defendant The First National Bank of Atlanta, said defendant McEachern, his wife and said Trust Officer advised defendant John R. Maddox that they had seen said Cravey property with petitioner and his said agents, that they had instructed petitioner not to reveal McEachern's identity to the sellers, and that they were interested in purchasing same as well as purchasing said Ponder property.
"35. That defendant John R. Maddox and defendant Dickey-Mangham Co., Inc. never showed said Cravey property to defendant McEachern and did not at the time defendant McEachern saw said Cravey property, have a listing of same for sale.
"36. That defendants McEachern, The First National Bank of Atlanta, John R. Maddox, and Dickey-Mangham Co., Inc., conspired together to have defendant McEachern purchase said property referred to herein as the Cravey property through defendants John R. Maddox and Dickey-Mangham Co., Inc. as real estate agent and broker respectively rather than through petitioner, in order to obtain for defendants John R. Maddox and Dickey-Mangham Co., Inc. the real estate sales commission of 10% of the purchase price of said property.
"37. That pursuant to said conspiracy to defraud and deprive petitioner of said sales commission, and having knowledge of the McEacherns' instructions not to reveal their identity, and also knowing that petitioner and his said agents would be entitled to said sales commission if said property were sold to the McEacherns, defendants procured a contract dated July 22, 1964, for the purchase of said Cravey property for a purchase price of $128,000.00, which contract was executed by The First National Bank of Atlanta by C. Trippe Slade, Trust Officer, as purchaser and provided that a real estate commission of 10% of the purchase price, to wit, $12,800.00 be paid to defendant Dickey-Mangham Co., Inc., a copy of which contract is hereto attached marked Exhibit `B' and made a part hereof.
"38. That said contract was entered into without the knowledge of petitioner and within two and one-half weeks after, defendant McEachern notified petitioner that he was not at that time interested in purchasing the Cravey property.
"39. Pursuant to said contract the sale of the said Cravey property was closed on August 21, 1964, at which time legal title to the property was placed in John N. McEachern, Jr., in exactly the same manner as the Ponder sale was handled, and a real estate sales commission was paid to Dickey-Mangham Co., Inc., (and John R. Maddox) in the sum of $12,800.00, which real estate sales commission petitioner charges he was deprived of by virtue of the fraudulent acts and conspiracy on the part of the defendants named herein.
"40. That the acts of the defendants as alleged herein have damaged your petitioner in the sum of $12,800.00 for which said defendants are jointly and severally liable.
"41. That because of said fraudulent acts, conspiracy and bad faith on the part of the defendants as alleged herein, defendants are jointly and severally liable to your petitioner for expenses of litigation in the form of attorney's fees.
"42. Your petitioner alleges reasonable attorney's fees for bringing and prosecuting this action amount to at least $5,000.00.
"43. That because of the fraud, conspiracy and bad faith on the part of the defendants as alleged herein, your petitioner is entitled to recover punitive damages in the sum of at least $5,000.00 in order to deter defendants from repeating the acts or type of acts complained of herein."
The petition in this case seeks to assert a cause of action in tort for a conspiracy to deprive plaintiff of real estate commissions. Named as respondents are McEachern, the purchaser, The First National Bank of Atlanta allegedly a party confidant of McEachern engaging in the conspiracy, John Maddox a real estate agent who ultimately received the commissions on the property, and Dickey-Mangham Co., Inc., the employer of Maddox.
There is no doubt that a cause of action may be based on a tort ensuing from a conspiracy to deprive a real estate broker of commissions earned in a real estate transaction. Barnett v. Eubanks, 105 Ga. App. 749 ( 125 S.E.2d 571); Kerr v. DuPree, 35 Ga. App. 122 ( 132 S.E. 393). Where the sale is made directly by the owner to the purchaser, or through a "straw man," or through another agent, the commission of the tort may be established by the inducing of a breach of a contract between the seller and the broker (the most common) or by showing a wrongful interference with the broker and the purchaser where sufficient facts are alleged to demonstrate that the plaintiff-broker is the procuring cause or the efficient cause of the ultimate sale. See 9 ALR 1189; 97 ALR 1273; 146 ALR 1410; 12 ALR2d 1352.
"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." Code § 4-213. While there is a plethora of cases dealing with the application of this Code section under various factual situations, it is manifest throughout all of the cases that the gist of an action by a broker to recover commissions is the showing that the plaintiff-broker was the procuring or efficient cause of the sale. See annotations Code Ann. § 4-213 and 12 CJS 207, Brokers, § 91. Thus, in either type of action it is essential to allege facts sufficient to show that the plaintiff broker was the procuring or efficient cause of the sale. In absence of alleging those essentials, there can be no contract breached in the first instance nor a conspiracy coupled with a wrong done in the second.
The present petition fails utterly to allege these essentials or facts from which an inference of their existence is demanded. To withstand a general demurrer it is essential for a petition either (1) to allege the ultimate fact or (2) to allege facts from which the inference of the ultimate fact is demanded. Ford Motor Co. v. Williams, 219 Ga. 505 ( 134 S.E.2d 32). A petition "which merely recites the proof, from which the fact intended to be put in issue may be inferred, is defective. It should positively affirm or deny the truth or falsehood of the matter in dispute." Williams, supra, p. 507, and citations. It is not enough that facts are pleaded from which inferences may be drawn of the ultimate fact, rather it is essential that the pleaded facts must demand that inference.
The petition shows that plaintiff had no exclusive listing of the realty. Further, it is affirmatively alleged that plaintiff did not inform his principal that McEachern was a prospect. Reduced to its material essence all the petition alleges is that plaintiff showed to McEachern the realty which McEachern ultimately bought and exercised some unilateral salesmanship in attempting to sell the property. There is no showing that McEachern himself had displayed to plaintiff any particular or unusual interest in the realty, or had seriously considered purchasing it. On the contrary the petition affirmatively alleges that McEachern prior to his purchase told the plaintiff that he was not interested in the property. Nothing is alleged negating the inference that McEachern was telling the truth.
Otherwise, the petition is replete with extraneous allegations treating with the particulars of a sale by another owner to McEachern of realty not involved in this suit and for which, as the procuring cause of the sale, the plaintiff received a sales commission of $21,000. Equally irrelevant are those allegations which deal with the plaintiff's securing at McEachern's request from a third owner an offer to sell a third parcel, which offer McEachern refused. It is too much to ask that the inference be drawn that services performed by the plaintiff in those transactions were also furnished in the sale in issue. Each of these business matters is separate and each must rest on its own particular facts. Indeed, if any inference at all may be drawn properly from those irrelevant allegations, it can only be that McEachern by readily acquiescing in the payment of a much larger commission to the plaintiff demonstrated he was dealing fairly with the plaintiff.
No wrong is shown by the allegation that the plaintiff did not tell the owner that he had shown the property to McEachern because McEachern requested him not to do so for fear the price might be raised. There is nothing in the petition implying fraud in the request, and furthermore, any duty which the plaintiff as agent owed to divulge or not to divulge the information was owed to his principal, not to McEachern.
The assertion that McEachern and the other defendants wanted Maddox to receive the commission on the sale adds no substance to the petition in the absence of allegations showing plaintiff was the procuring or efficient cause of the sale.
The judgment sustaining the general demurrer and dismissing the petition is affirmed.
Felton, C. J., Frankum, Eberhardt, and Deen, JJ., concur. Jordan and Pannell, JJ., concur in the judgment only. Nichols, P. J., and Hall, J., dissent.
While the assignment of error relates to a general demurrer to the petition, I think all would agree that the allegations of a conspiracy are sufficient even as against a special demurrer. National Bank of Savannah v. Evans, 149 Ga. 67 (2) ( 99 S.E. 123); Cook v. Robinson, 216 Ga. 328 (5) ( 116 S.E.2d 742); National City Bank of Rome v. Graham, 105 Ga. App. 498, 503 ( 125 S.E.2d 223). The question is whether the alleged conspiracy is supported by and combined with a tort which caused damages to the plaintiff. In National City Bank of Rome v. Graham, 105 Ga. App. 498, 507, supra, this court, composed of practically the same judges who join in the majority opinion, stated that "the words that the defendants conspired `with the full knowledge that . . . petitioner was the efficient cause of the procuring of the purchaser' for the property . . . as against general demurrer, would be sufficient to show a tort."
The majority opinion takes the position that the petition fails to allege sufficient facts to support a conclusion that the plaintiff was the procuring cause of the sale. From this holding, I dissent. The petition alleges that the plaintiff had a listing of the Cravey property, obtained from the owner, when he first showed the Cravey and Ponder properties to the McEacherns and the bank in April; that the plaintiff procured from the owner and gave the McEacherns plats of the Cravey property showing how it could be joined with the Ponder property; that on the day the plaintiff showed the Cravey property to the defendants other than Maddox, these defendants informed Maddox that they had seen the Cravey property with the plaintiff and that the McEacherns were interested in purchasing the Cravey property; that at the time Maddox did not have the Cravey property listed; that after the Ponder sale was closed through the plaintiff, McEachern's wife on June 24 requested the plaintiff to continue negotiations for the purchase of the Cravey property; that the first week in July the McEacherns informed the plaintiff they were not interested in the property; that shortly thereafter on July 22, they contracted to purchase the property through Maddox; that Maddox had never shown them the property.
It must be borne in mind that "in determining whether a broker has earned his commission for procuring a purchaser, it is not necessary that his services shall have been the sole cause, but it is enough if the efforts of the broker, acting on the purchaser, are the efficient cause of his offer." Lundin v. Kuniansky, 107 Ga. App. 774 ( 131 S.E.2d 219). "When considering demurrers, pleadings are construed as a whole and given their natural intendment, and the final test of the sufficiency of a petition is whether the defendant can admit all that is alleged and escape liability." Belk-Gallant Co. of LaGrange v. Cordell, 107 Ga. App. 785, 787 ( 131 S.E.2d 575).
In ruling on this general demurrer we must admit that all the plaintiff's allegations of efforts in seeking to procure this purchase are true; must admit the truth of the allegations that on the day the plaintiff showed the property to the defendants other than Maddox, these defendants informed Maddox, who then had not listed the Cravey property, of McEachern's interest in the property; and must admit further that the allegation that the defendant broker did not even show the purchaser the property is true. Can it be said as a matter of law that a jury would not be authorized to find that, while the plaintiff's services were not the sole cause, they were the efficient cause in procuring the purchaser? I think not. See Nottingham v. Wrigley, 221 Ga. 386 ( 144 S.E.2d 749).
I am authorized to state that Nichols, P. J., concurs in this dissent.