Opinion
36081.
DECIDED APRIL 4, 1956.
Action on contract. Before Judge Moore. Fulton Superior Court. December 19, 1955.
Poole, Pearce Hall, for plaintiff in error.
Augustine Sams, contra.
1. By appointing a real-estate broker his exclusive agent to sell designated property, the owner does not relinquish the right to sell the property himself without incurring liability to the broker for commissions on the sales.
2. A novation, to be valid, must be supported by some new consideration.
DECIDED APRIL 4, 1956.
J. L. Morrison brought a suit against A. Bates Pratt and A. Thomas Bradbury in Fulton Superior Court to recover certain amounts representing real-estate brokerage fees he alleged were due him by the defendants.
The petition alleged that he entered into a certain contract with the defendant Bradbury, the portions of which necessary to a clear understanding of this case being as follows: "Jesse L. Morrison agrees to furnish services necessary to development of subdivision on tract of 28.8 acres located between Ferncliff Road and the Southern Railroad bordered on and East of Lenox Road in land lots 8 and 9 in 17th District of Fulton County as follows: Confer with Planning Commission on arrangement of lots; secure information on installing sewerage, water, gas and electric power and incidentals necessary for the development.
"For consideration of the above services, the said A. Thomas Bradbury agrees to give by warranty deed to said Jesse L. Morrison Lot one (1) in Block `A', in Land Lot Eight (8) of the 17th District of Fulton County, Georgia, fronting 119.6 feet on Lenox Road and running back of uniform width to a depth of 200 feet, as shown by survey made by Bracewell and Alderman, Civil Engineers, dated October 10, 1952.
"The deed will be delivered when the subdivision has been approved by the Planning Board and filed for record.
"Also, said A. Thomas Bradbury constitutes the said Jesse L. Morrison sole agent and broker for the purpose of selling any and all lots in Land Lots 8 and 9 in 17th District of Fulton County, Georgia, as shown by survey of said Bracewell and Alderman, Civil Engineers, and to pay said Jesse L. Morrison the regular fee allowed brokers. There will be approximately 41 lots in said survey."
The petition alleged that subsequently to this contract of employment the defendants Bradbury and Pratt entered into a partnership agreement, by the terms of which Pratt was vested with an interest in the lots the plaintiff had been employed to sell. The petition related that the defendants themselves sold one of the lots, and recognizing his exclusive right to sell the lots agreed to pay him a named amount to compensate for his commission on that lot; and that the defendants were indebted to him for a commission on another lot that the defendants themselves had sold.
The defendants filed general demurrers to the petition. Thereafter the petition was amended to show certain matters not material to the consideration of this case, and further set forth the averment: "Said contract, Exhibit A, was ratified verbally by the defendant Pratt on or about March 1, 1954, namely, Pratt agreed that plaintiff would be paid five per cent. for the sale of a vacant lot which included Lot 2 in Block B, would be paid five per cent. commission on each and every house and lot sold entirely through his own efforts and the sum of $400 upon each and every house and lot sold where some other agent participated in the sale. That plaintiff was entitled to the sum of $196.50 on Lot 2 sold to Jesse B. and Anna B. Avery known as 966 Ferncliff Road." The Lot 2 referred to here was one of those the original petition had alleged the defendants themselves had sold.
The defendants renewed their demurrers to the petition as amended. The trial judge overruled the demurrers, and the defendants excepted.
The plaintiffs in error will be referred to as the defendants, and the defendant in error as the plaintiff, they having occupied these respective positions in the trial court.
1. The plaintiff's right of action depends upon whether, under the allegations of the petition as originally drawn or under the averments of the petition as finally amended, the defendants are shown to be liable to him for commissions on two lots that they themselves sold.
The contract by which the defendant Bradbury originally employed the plaintiff to sell certain lots owned by Bradbury constituted the plaintiff Bradbury's exclusive agent for the purpose, but did not stipulate that Bradbury as owner of the lots could not sell them. As the matter then stood, the sale of the lots by Bradbury clearly did not render him liable to the plaintiff for commissions. This is true for the reason that the rule is well established by the courts of this State that, though the owner appoints a real-estate broker his exclusive agent to sell designated property, in the absence of a contractual provision to the contrary the owner may sell his own property without incurring liability to the broker for commissions. Code § 4-213; Garfunkel v. Byck, 28 Ga. App. 651 ( 113 S.E. 95); Barrington v. Dunwoody, 35 Ga. App. 517 ( 134 S.E. 130); Ocean Lake c. Co. v. Dotson, 70 Ga. App. 268 ( 28 S.E.2d 319); Irish v. Fisher, 74 Ga. App. 631 ( 40 S.E.2d 588). And see generally the annotation to Isern v. Gordon, 127 Kan. 296 ( 273 P. 435), in 64 A.L.R. 395.
2. However, the petition contains the further averment that, after a partnership was formed by the defendants Bradbury and Pratt and Pratt became vested with an interest in the lots, the defendants recognized the plaintiff's exclusive right to sell the lots that they themselves sold and agreed to pay him commissions in a named amount. The petition further related that the defendant Pratt, subsequently to the formation of his partnership with Bradbury, agreed that the plaintiff was to be paid commissions of a certain percent of the lots sold by the defendant partners. Both of these alleged agreements, if supported by valid consideration flowing to the partnership, would have been such a novation or change in terms of the contract as to entitle the plaintiff to the fees he alleged were promised him. But the petition, neither as originally drawn nor as subsequently amended, shows that there was any consideration for the new agreements. Hence they fall into the category of a nudum pactum and are unenforceable. The ancient rule that a novation must be supported by some new consideration must be recognized. Code §§ 20-115, 20-301; Purser v. Rountree McAfee, 142 Ga. 836 ( 83 S.E. 958); Collier Estate v. Murray, 145 Ga. 851 ( 90 S.E. 52); Widincamp v. Patterson, 33 Ga. App. 483 (4) ( 127 S.E. 158); Wimberly v. Tanner, 34 Ga. App. 313 ( 129 S.E. 306).
The petition as amended set forth no cause of action.
Judgment reversed. Felton, C. J., and Nichols, J., concur.