Opinion
32976.
DECIDED MAY 3, 1950. REHEARING DENIED JUNE 6, 1950.
Complaint; from Fulton Civil Court — Judge Parker. January 23, 1950.
Herbert Johnson, Ross Arnold, Henry M. Hatcher Jr., for plaintiffs in error.
Grant, Wiggins, Grizzard Smith, contra.
1. There is sufficient evidence to sustain the verdict of the jury under the general grounds.
2. The special grounds show no cause for reversal, for the reasons as set out in the body of the opinion.
DECIDED MAY 3, 1950. REHEARING DENIED JUNE 6, 1950.
Mrs. E. B. Smith, plaintiff in the court below, defendant in error here, hereinafter called the plaintiff, brought suit against J. M. Buice and T. M. Fortner, defendants in the court below, plaintiffs in error here, hereinafter called the defendants, to recover $1,142.00 alleged to be due the plaintiff for fee and commission for valuable services rendered the defendants in the sale of certain property. Upon trial in the Civil Court of Fulton County, the jury returned a verdict in favor of the plaintiff for $1,142.00, the amount for which suit was brought. The defendants moved for a new trial, which motion was overruled. The case is now properly before this court on the overruling of the amended motion for a new trial.
The evidence substantially shows that the plaintiff was a real-estate broker, properly licensed, having been engaged in that work for approximately twelve years. The plaintiff testified that she acted as broker for the owner of a certain lot, on which the house in question was later built; that in consideration of a fee of $100 in lieu of the usual fee, the purchasers of the lot, defendants here, gave her the exclusive right to sell the house which they later built on the lot. The plaintiff had a house of her own in process of being built, which she showed to Mrs. Loner, the subsequent purchaser of the premises in question here. The plaintiff hoped to sell her own house to Mrs. Loner, but Mrs. Loner did not like that particular house, but plaintiff testified that she mentioned the house that the defendants had started to build, telling Mrs. Loner that the house would probably not be finished for 60 days, or longer, but that she thought Mrs. Loner would be wise to wait until the house of the defendants was completed, at which time the plaintiff would sell it to Mrs. Loner, as plaintiff had exclusive right to sell the house for the defendants. Mrs. Loner stopped by to see the house in question, at the plaintiff's suggestion, and stated to the plaintiff that same day, according to the plaintiff's testimony: "That is the house I want, but Frank (her husband) will never let me pay $32,500. . . If I can't find what I want I will be willing to wait on the house until it is completed." The plaintiff further testified that she talked with Mrs. Loner on several occasions after that, offered to take Mrs. Loner to see it; that Mr. Fortner, one of the defendants, brought and gave a key to the house to the plaintiff, at the time the house was being plastered; that due to defects in the plastering, and later in the paint job, she was asked not to show the house until the defects had been corrected; that later she was told "Mrs. Smith, we'll have the house finished for you to hold it open this coming week-end;" that in the presence of one of the defendants she gave the ad to the Journal on Friday; that at this same time she told this defendant that she was going to call Mrs. Loner, as Mrs. Loner had been promised the refusal of the house; that she called Mrs. Loner; that Mrs. Loner promised to bring her husband to see the house before it was opened to the public; that the defendant who was present offered no objection to the conversation between Mrs. Loner and the plaintiff; that he never contended that Mrs. Loner was his prospect; that within a few hours the defendants sold the house to Mrs. Loner directly, then offered to pay the plaintiff one-half of the usual commission, which she refused, saying, "No, if I earned any commission at all, I earned full commission." Mr. Fortner, one of the defendants, then "got mad and walked out and sat on the window-sill of my office"; Mr. Buice, the other defendant, remained in the plaintiff's office, and said: "If you want full commission, I'm perfectly willing to pay you a full commission, but I want all of you to remember that I am only half interested in it and we are not building any more houses together." The plaintiff further testified that the next day the defendants refused to pay her any commission at all, contending that she was not entitled to any commission as she did not have exclusive right to sell the house until it was completed.
On cross-examination the plaintiff testified that the defendants gave her the exclusive right to sell the property in the presence of four witnesses, without any reservations as to reserving the right to sell it themselves during the time the house was in process of being built. There was no written contract.
Mr. E. B. Smith, husband of the plaintiff, testified that he heard Mr. Fortner, one of the defendants, tell the plaintiff that plaintiff would be given 30 days exclusive, and if the house wasn't sold in 30 days time, that he might give her 60 days. Witness further testified: "I told Mr. Buice and Mr. Fortner that this lady [Mrs. Loner] came down to our house, and `I told her about your place going up there'" Later, so the witness testified, the defendants told witness that "Mrs. Loner came up there, but she didn't say who sent her." Witness heard the conversation between the plaintiff and the defendants as to defendants' offer to pay the plaintiff one-half of the commission. Witness testified on redirect examination that he was present, as was defendant Fortner, when the plaintiff phoned the ad in to the Atlanta Journal, at which time defendant Fortner gave the plaintiff the key to the house, and stated to the plaintiff that if the plaintiff did not sell the house before the 30 days exclusive was up, that he probably would allow longer on the exclusive; that this conversation occurred at the time the key was given to the plaintiff, and at the time the plaintiff phoned Mrs. Loner, the defendant Fortner hearing the plaintiff phone Mrs. Loner, the subsequent purchaser. This was the day before the defendants sold the house to Mrs. Loner.
Mr. Charles Smith, son of the plaintiff, testified substantially as did his father. He testified: "My father said [to my mother, in my presence] that Mr. Buice and Mr. Fortner came in [while the plaintiff was absent] and said that they had sold the house to Mrs. Loner. Shortly thereafter Mr. Buice and Mr. Fortner came to the store and told my mother they had sold the house to Mrs. Loner. Mr. Fortner said they would pay her half commission and Mr. Buice agreed with him. My mother said she wasn't willing to do that because she had worked hard with Mrs. Loner. . . Mr. Buice said he was willing to pay the full commission, but of course that he only had half interest in the partnership."
Mrs. M. L. Corbin, an employee of the plaintiff, testified that she heard the conversation between the plaintiff and the defendants when the defendants promised the plaintiff a 30 days exclusive on the house; that both the defendants were present. She further testified: "Mr. Buice and Mr. Fortner both told Mrs. Smith if she could get the lot [on which the house was subsequently built] for them for $4,000.00, that they would take the lot and give her exclusive on the house that was to be built on the lot for 30 days prior to the completion of the building. They wouldn't show it and wouldn't allow any other real estate company to show it; they wouldn't show it themselves without her permission."
J. M. Buice, a defendant, testified that the exclusive was not promised to Mrs. Smith as an inducement to get her to accept the defendants' offer on the lot. "We offered to give Mrs. Smith an exclusive for 30 days after the house was completed at the time we signed the contract." He testified that the plaintiff never mentioned Mrs. Loner's name to him prior to the time Mrs. Loner bought the house. He testified that he did not hear any telephone conversation between Mrs. Smith and Mrs. Loner; that the defendants did not give the exclusive on the house except for a sale made after the house was completed. "I admit I gave her the exclusive after the house was finished, but the house wasn't finished."
Mr. T. M. Fortner, a defendant, testified that the plaintiff never did tell witness that she had Mrs. Loner as a prospect for the house that he told Mrs. Loner that if she wanted to buy the house "from us, you got to buy it from us this week because we are going to let Mrs. Smith have it for the week-end to hold open." He testified that he never heard a conversation via phone between Mrs. Loner and the plaintiff. Witness testified that he told the plaintiff: "The first day that you mention this house to anybody, that is the day your 30 days start," and that he was going to sell the house himself, if he could, while it was being built.
Mrs. Loner, sworn as a witness on behalf of the defendants, testified that while on the way to see about purchasing another house, she stopped by to see the unfinished house of the defendants; that upon inquiry of defendant Fortner as to who would be the agent for the sale of the house, she was told that the plaintiff would be the agent; that prior to this conversation with defendant Fortner neither the plaintiff nor anyone connected with the plaintiff had shown the house to the witness; that witness first observed the house herself; that it was just a coincidence that the plaintiff called her about the house the day witness bought the house; that when she and her husband paid the $1000 down on the home, they expected to pay a total of $32,500 for it; that during a conversation with defendant Fortner he spoke up and asked if the plaintiff told witness of the home, whereupon witness replied that the plaintiff did not; that it was at this point that defendant Fortner offered to reduce the price of the home by $1100; that witness replied that even though such reduction was comparatively small in relation to the purchase price of the home, that every little helped, and stated to witness Fortner: "If we are entitled to it [the reduction], if it is legally safe and all, we would certainly like to have it." Witness further testified that defendant Fortner then said that the house was not yet completed and that inasmuch as the house was being sold to a person who had not been contacted by the plaintiff, that the house could be sold to the witness for $1100 discount. Witness testified that she discussed the house with the plaintiff as an agent, after witness had seen the house the first time.
1. (a) We have set out the evidence somewhat in detail, and, while the evidence is conflicting in some respects, it is sufficient to sustain the verdict of the jury on the general grounds.
(b) It is our opinion that the plaintiff offered sufficient evidence to support the allegations of the petition that she (1) was an agent of the defendants in the sale of the house in question at the time of the sale to Mrs. Loner; (2) that Mrs. Loner was the plaintiff's prospect and was so known to the defendants; (3) that the plaintiff expended efforts in the sale of the house; (4) that at the time of the sale the defendants had no right to sell the house without incurring obligations of paying the agent's commission. The jury so found. Counsel for the defendants earnestly urge that we should evaluate the petition and determine the theory upon which the petition is laid, and cite many authorities in support of this contention. We do not think it necessary, for the purposes of this opinion, to construe the petition to this degree. Suffice it to say that the allegata and probata conform, and, in any event, should the petition be ambiguous, the construction must be adopted which supports the verdict. See Halliburton v. Collier, 75 Ga. App. 316 ( 43 S.E.2d 339). Furthermore, in Bridges v. Ramsey Service Co., 50 Ga. App. 583 ( 179 S.E. 404), there was no question before us on demurrer to the petition. It follows that the principle of law as laid down by this court — Judge MacIntyre, speaking for the court — prevails. In that case, this language was used: "If the petition be subject to two constructions, and there is no demurrer, then, in determining whether the case has been proved as laid, that construction will be adopted which is most favorable to the assertion of the cause of action in the plaintiff's favor."
It is true that under certain conditions, an owner may sell direct to a purchaser during the life of an exclusive, but the cases cited and relied upon by counsel for the defendants, all having been read by this court, are not binding upon the facts of the instant case, as reflected by the evidence. This can be readily determined by a reading of the cases. Counsel cite, among others: Garfunkel v. Byck, 28 Ga. App. 651 ( 113 S.E. 95); Doonan v. Ives, 73 Ga. 295, and Tidwell v. Hines, 28 Ga. App. 806 ( 113 S.E. 48). Also, it must be remembered that there was no objection properly made to certain testimony, although counsel now contend that certain testimony was harmful to the cause of the defendants. We therefore conclude that the law of the case as to these phases is that expressed in Washington v. Jordan, 28 Ga. App. 18 ( 109 S.E. 923), as follows: "The law of this case is well settled and is this: If under his contract with the defendant, the plaintiff performed work and rendered services in compliance with the contract, whether express or implied, and procured, as a result of his services, a customer for the property in question, and the owner, having information that the broker was negotiating with the customer, did himself as owner sell the property to the customer so procured by the broker, although with some modification of the terms on which the authority to sell the property had been given by the owner to the broker, the owner could not thereby defeat the payment of the broker's commission. This would be a fraudulent taking advantage of the broker's labor without paying for it." There is no merit in the contentions of the defendants as to these phases.
2. Special ground 1 complains of the following excerpt from the charge of the court: "Now, that `during the agency' clause in the law is material in this case because the defendants contend that the plaintiff's agency had not started at the time that the sale took place and that they reserved the right to sell the property themselves up until the house was completed."
Error is assigned on this excerpt because it was misleading and confusing to the jury in that said charge implies that after the house was sold (completed) the defendants did not reserve the right to sell the property themselves and could not sell the property without incurring a liability in commissions to the plaintiff. And further, if the jury found that the house had been completed at the time of the sale, said charge erroneously authorized the jury to find that the defendants incurred a liability to the plaintiff in selling even to their own prospects.
In view of the charge as a whole, we can not see that this charge was harmful and prejudicial to the defendants in any way. The court fully charged in regard to the life of the agency of the plaintiff in regard to the sale. There is no merit in this contention.
3. Special ground 2 complains of the following excerpt from the charge of the court: "Some of the questions you are to determine in the case are: What was the contract between the parties and if you find that there was a certain contract, did the parties by their conduct alter or amend or create a novation in that contract that would allow the plaintiff to proceed as she contends that she did proceed." Counsel for the defendants refer us to cases cited in support of special ground 1, and further cite the case of Fields v. Bullington, 20 Ga. App. 102 ( 92 S.E. 653), in support of this contention. To our minds the cases cited do not bind this court to reverse this case because of this excerpt from the charge. There is no case cited where the charge is on all fours with the charge in the instant case. We do not think that the excerpt from the charge, when construed along with the charge as a whole, would warrant this court in deciding that the charge was reversible error.
Since we hold that there is sufficient evidence to sustain the findings of the jury, and since we hold that there is no error in the special grounds, it follows that the court did not err in overruling the amended motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.