Opinion
36661.
DECIDED APRIL 30, 1957.
Petition to recover broker's commission. Before Judge Vaughn. Clayton Superior Court. December 31, 1956.
Albert B. Wallace, for plaintiff in error.
Edwin S. Kemp, Thomas F. Nicholson, contra.
The court committed error in sustaining the general demurrer to the petition and in dismissing the action.
DECIDED APRIL 30, 1957.
Brewer-Head Company, a corporation, brought an action against Lloyd H. Jackson, a resident of Clayton County, Georgia, to recover a real-estate broker's commission in the sum of $1,230 allegedly due. In the petition as finally amended, the plaintiff alleges that it is engaged as agents and brokers in the business of selling real estate, and that they are duly licensed as such agents and brokers by the Georgia Real Estate Commission, and that P. H. Mell listed the land described in the contract with the plaintiff for sale, and the defendant entered into a contract with the plaintiff to purchase the land for $12,300, but failed and refused to carry out the contract and to pay the plaintiff the commission which it had earned.
Those portions of the contract which are in controversy and material here are as follows:
"March 10, 1954 "The undersigned purchaser agrees to buy, and the undersigned seller agrees to sell, through Brewer-Head Company, broker, all that tract of land in Land Lot 235 of the 12th District, Clayton County, Georgia, being Lot # 1, 2, 3, 4, 5, 9, 10, 11, 12 and 13, of the W. E. Mitchell subdivision as per plat of the property of R. W. Mundy as appears of record in Plat Book 2, page 43 in the office of the Clerk, Superior Court, Clayton County, Georgia, being more fully described as follows: [Here the description is given]."The purchase price of said property shall be: twelve thousand three hundred and no/100 ........... dollars, $12,300.00, to be paid as follows: All cash above a (GI) loan in the approximate amount of $8,300. This loan is now being held or serviced by Roy D. Warren Company and is payable $59.40 per month which included taxes and insurance. Purchaser has paid to the undersigned, Brewer-Head Company, real-estate broker, receipt whereof is hereby acknowledged by such broker, $600 as earnest money, which earnest money is to be applied as part payment of purchase price of said property at the time sale is consummated. Seller agrees . . . to convey said property by warranty deed to purchaser at time sale is consummated, subject to: . . . Encumbrances as specified in contract. . . Purchaser agrees that if he fails or refuses to consummate transaction for any reason, except lack of marketable title in seller, purchaser shall pay broker full real-estate commission hereinafter provided. . . . Broker may enforce commission agreements due hereunder against the party liable therefor under the terms of this agreement.
"Commission to be paid in this transaction shall be calculated under item 4, of schedule shown on reverse side of this contract, which schedule is made a part of this contract by reference as fully as if incorporated herein.
"This contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. No representation, promise, or inducement not included in this contract shall be binding upon any party hereto.
"The following stipulations shall, if conflicting with printed matter, control:
"Special Stipulations.
"Property to be delivered free and clear of all liens except taxes for the year 1954 which are to be prorated to date of closing and the above mentioned loan. Also, insurance to be prorated, interest on the above loan. Purchaser to pay seller for any escrow deposit held by the loan company for the purpose of paying taxes and insurance and the same is to be transferred to purchaser. Sale is to be closed on or before 30 days from date of acceptance of contract. Possession to be given at the time of closing sale.
"This instrument shall be regarded as an offer by the purchaser or seller who first signs to the other and is open for acceptance by the other until ____________ o'clock _.M., on the ________ day of _________________________, 19__; by which time written acceptance of such offer must have been actually received by broker, who shall promptly notify other party, in writing, of such acceptance.
Lloyd H. Jackson (Purchaser) The above proposition is hereby accepted, this 13 day of March, 1954. P. H. Mell (Seller) Approved November, 1949 Brewer-Head Company By: Raymond H. Whitehead (Agents)" The trial court sustained a general demurrer to the petition as amended, and the plaintiff excepts.1. Whether or not a corporation doing business in Clayton County, Georgia, as a real-estate broker is required by the terms of Code (Ann.) § 84-1401 to be duly licensed before selling real estate in that county, upon pain of being unable by virtue of the provisions of Code § 84-1413, to enforce any claim for commissions, it is alleged in the plaintiff corporation's petition as finally amended that it is a duly licensed real-estate broker, and the petition in this case is not subject to general demurrer as coming within the rule announced in Hale v. Chatham, 91 Ga. App. 519 ( 86 S.E.2d 536).
2. The only remaining question raised by the general demurrer upon which counsel for the plaintiff and counsel for the defendant are at variance is whether the contract upon which suit is brought is sufficiently definite and certain as to the purchase price to be enforceable.
"A contract for sale of real estate is valid and binding where it is in writing and contains the following essentials: (1) It must specify the parties . . .; (2) it must sufficiently describe the subject matter of the contract; and, (3) it must name the consideration. The consideration need not be expressly stated, if the contract furnishes the key by which the amount of the purchase price can be ascertained. `If the consideration is not all to be paid in cash, then the times and amounts of deferred payments must be specified. When the contract expressly states the amount of purchase-money or furnishes a key by which it can be ascertained, then the contract is sufficient.' Muller v. Cooper, 165 Ga. 439, 441 ( 141 S.E. 300), and cit." Baker v. Lilienthal, 176 Ga. 802, 806 ( 169 S.E. 28).
By the terms of the contract, "the purchase price of said property shall be twelve thousand three and no/100 dollars, $12,300, to be paid as follows: All cash above a (GI) loan in the approximate amount of $8,300. This loan is now being held or serviced by Roy D. Warren Company and is payable $59.40 per month which included taxes and insurance." It is apparent from this provision of the contract that the purchase price itself is certain beyond any doubt. Any uncertainty concerning the purchase price is centered entirely around the assumption of the GI loan. The petition in this case is not subject to general demurrer.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.