Court of Appeals of GeorgiaJun 26, 1956
94 Ga. App. 110 (Ga. Ct. App. 1956)
94 Ga. App. 11093 S.E.2d 820


DECIDED JUNE 26, 1956.

Action on contract. Before Judge Cobb. Clarke Superior Court. March 15, 1956.

O. J. Tolnas, for plaintiff in error.

Dorsey Davis, Fred A. Gillen, contra.

Generally, parol negotiations and stipulations preceding the making of a written contract are merged into the written instrument.

DECIDED JUNE 26, 1956.

R. E. Freeman and L. H. Guest brought an action against Mrs. Eugenia A. Blount, coexecutrix of the estate of O. H. Arnold, Jr. The plaintiffs alleged that the defendant was indebted to them on an open account in the amount of $125. The defendant in her answer denied any indebtedness to the plaintiffs. Upon the trial the defendant introduced the following written contract: "Athens, Ga., 9-28, 1954. Received of H. H. Thomason one hundred dollars as part purchase money on the following property: All that tract or parcel of land situate, lying and being in Athens, Clarke County, Georgia, and located on the south side of Rutherford Street adjacent to the lot of Mrs. Ross Creekmore and fronting on Rutherford Street 101 feet, more or less, — EAB. Estate of O. H. Arnold, Jr., requires that a house comparable to the other houses in the neighborhood be built on said lot — no garage apartment — which, on and for account of the owner and vendor, we have this day sold to the purchaser above named, subject to approval of vendor and titles being good, or made good within a reasonable time, for the sum of twenty-six hundred fifty and 00/100 dollars to be paid as follows: $100 down to bind the trade; balance cash when purchaser's attorney passes the title and warranty deed is issued to the purchaser by the present owner, $2,000 when title is o. k., $550 in 30 days. Special note: All taxes to be prorated on the date of the consummation of this deal.

R. S. Freeman L. H. Guest, Agent By /s/ R. S. Freeman.

I hereby agree to purchase the above described property on terms and conditions above named.

Witness: R. S. Freeman. H. H. Thomason, Purchaser

I hereby approve of the above mentioned sale on the terms and conditions named, and agree to pay to R. S. Freeman L. H. Guest, agents, on the date formal transfer is made, a commission of one hundred twenty-five and No/100 dollars.

Estate of O. H. Arnold, Jr. Eugenia Arnold Blount, Co-Ext."

R. S. Freeman, one of the plaintiffs, testified in part: That he and L. H. Guest had an oral agreement with the defendant to sell a piece of real estate for the Arnold estate; that they had the power to sell the property; that "We put the terms in writing, but we had authority to sell it at any price"; that "Mrs. Blount wanted some additional agreements and we did write out all of these contracts"; that they became Mrs. Blount's agents to sell the property prior to the time anything was put in writing; that "we went out to see her about selling the lot and she gave us permission to sell it, under the terms that were later incorporated in the written contract."

Mrs. Blount testified that she never refused to sell the property and was still ready and willing to sell. The evidence further disclosed that the prospective buyer would not consummate the sale because his attorney advised him that the title was not good.

The plaintiffs insist that the action was not predicated upon the written contract which was introduced in evidence, but was based upon an oral agreement between the parties to sell the property which was made prior to the execution of the written contract. Parol negotiations and stipulations preceding the making of a written contract are merged in the written contract. Logan v. Bond, 13 Ga. 192 (3); Freeman v. Bass, 34 Ga. 355 (4); Sims v. Crawford, 56 Ga. 31. The written contract governs the rights, obligations and remedies of the parties. In the present case R. S. Freeman testified that the oral agreement was merged into the written contract. The contract provided for payment "on the date formal transfer is made." In Kiser Real Estate Co. v. Shippen c. Co., 34 Ga. App. 308 (1) ( 129 S.E. 294) appears a pronouncement of principles applicable to this case: "But where by the terms of the contract of listment it is expressly agreed that the broker's right to commission is conditioned upon an actual transfer of the property, the contract providing that he shall be paid `on the date formal transfer is made,' such a provision is binding, and the broker is not entitled to his commission until the sale is actually effected, unless it be shown that he has fully complied with his undertaking by producing a purchaser ready, willing, and able to buy, and who actually offers to buy on the agreed terms, and that the sale fails of consummation only because the owner in bad faith fails and refused to effectuate the same. See Rowland Rowland v. Kraft, 31 Ga. App. 593, 595 ( 121 S.E. 526); Nutting Co. v. Kennedy, 16 Ga. App. 569 ( 85 S.E. 767). In other words, it is possible for the owner and the broker to so contract as to change the general rule, and by their special agreement to provide that commission shall not be earned unless or until the sale becomes actually effectuated. In such a case, where the offer of the purchaser does not absolutely obligate him to buy, but limits the proposal to his approval of title, and where the sale fails to become effected on account of defective title, and not on account of the owner's refusal to sell, the owner, under such special contract of listment, does not become liable for commission."

The oral agreement having been incorporated into the written contract, the evidence demanded a verdict for the defendant. The trial judge erred in denying the motion for new trial.

Judgment reversed. Felton, C. J., and Nichols, J., concur.