Opinion
43371, 43420.
ARGUED JANUARY 12, 1968.
DECIDED JULY 1, 1968. REHEARING DENIED JULY 24, 1968.
Action for broker's commission. DeKalb Civil and Criminal Court. Before Judge Smith.
Sam G. Dettelbach, for appellant.
Rich, Bass, Kidd Broome, Robert K. Broome, C. Richard Avery, for appellee.
In this suit based on a breach of agreement to pay a broker's commission in the event the principal interfered with sale of the business or property by renting it or withdrawing it from the market, a judgment for the plaintiff broker was not authorized in the amount of the commission where there was no evidence that plaintiff had produced a purchaser ready, willing and able to buy and who actually offered to buy on the stipulated terms.
ARGUED JANUARY 12, 1968 — DECIDED JULY 1, 1968 — REHEARING DENIED JULY 24, 1968 — CERT. APPLIED FOR.
Ralph Boyd, doing business as Ralph Boyd Company, brought this action against Ezra Davis to recover a real estate commission based on a written agreement executed by both parties on October 6, 1966, and providing in part as follows:
"I [Ezra Davis] hereby give Ralph Boyd Co., brokers, as our only authorized agent for a period of 90 days to sell or otherwise negotiate our business proposition, Mr. M. Cafeteria, Moreland Center, located at Atlanta, Ga. . . . part or all, at the price and upon the terms furnished them, or any less price, or on any other terms to which I hereafter agree. . .
"Sales price $40,000.
"I hereby agree to pay Ralph Boyd Co., brokers, 10% of sales price as commission or compensation for selling, or otherwise negotiating said proposition described above; and I agree that I shall not myself sell or negotiate said proposition through any other agency, unless I pay Ralph Boyd Co., brokers, the amount of commission specified below.
"I also agree to promptly execute any and all necessary conveyances to the purchaser; and I shall not fail or refuse to deliver when Ralph Boyd Co., brokers, has a purchaser willing and able to buy, nor withdraw said business or property from the market during the life of this contract, nor rent the said business or property, nor otherwise alter its status in such a way as to impede, hinder or interfere with the sale thereof. . . . In either of said events,
"I pay Ralph Boyd Co., brokers, the amount of the commission specified above."
The petition did not seek to recover a commission earned by producing a purchaser ready, willing and able to buy and who actually offered to buy on the terms stipulated by the owner. Instead, Count 1 of the petition was based on the clause of the agreement providing for payment of the commission in the event the owner himself sold the business within the specified 90-day period. Count 2 contended that plaintiff was entitled to the commission because defendant had withdrawn the business from the market and had leased it to Jack LeCroy during the 90-day period, "thereby altering its status in such a way as to impede, hinder and interfere with the sale thereof by petitioner."
The evidence showed that on November 30, 1966, defendant and two other persons as stockholders of G. M. Moreland, Inc., which owned the Mr. M. Cafeteria, granted an option to Jack LeCroy to purchase all the stock of the corporation on or before January 16, 1967. Concurrently the corporation, through defendant and the other stockholders, entered into an agreement with LeCroy providing for the management of the business by LeCroy until exercise or expiration of the option, with LeCroy to pay all expenses and to retain all profits from the operation. The option was exercised after expiration of the 90-day period of the brokerage agreement, and a sale of the business to LeCroy was consummated in February, 1967, for the gross sum of $29,500.
The court, sitting without intervention of a jury, granted judgment for plaintiff in the principal amount of $2,950.
1. The court did not err in overruling defendant's general demurrer to Count 2 of the petition. In this connection see Harper v. DeFreitas, 117 Ga. App. 236, 238 ( 160 S.E.2d 260); Bazemore v. Burnet, 117 Ga. App. 849 ( 161 S.E.2d 924); Reiner v. David's Super Market, 118 Ga. App. 10 ( 162 S.E.2d 298). The petition did not fail to state a claim for the reason that the brokerage agreement did not more fully describe the property and the interest therein to be sold. See Orr v. Smith, 102 Ga. App. 40, 43 ( 115 S.E.2d 601).
2. During the trial plaintiff's counsel expressly abandoned Count 1 of the petition. Thus the issue in connection with defendant's contention that the amount of judgment was not authorized by the evidence is narrowed to a consideration of whether the evidence supported the recovery under Count 2. This involves an interpretation of the following provision of the agreement: "I shall not fail or refuse to deliver when Ralph Boyd Co. brokers, has a purchaser willing and able to buy, nor withdraw said business or property from the market during the life of this contract, nor rent the said business or property, nor otherwise alter its status in such a way as to impede, hinder or interfere with the sale thereof. . . In either of said events, I pay Ralph Boyd Co., brokers, the amount of the commission specified above."
This provision is doubtful as to whether defendant would be obligated to pay the amount of the commission in the event of withdrawal of the business from the market or in the event of rental of the business where plaintiff did not produce a purchaser during the specified 90-day period. We think it is subject to the interpretation that in order to incur liability under its terms the acts of defendant must have impeded, hindered or interfered with sale of the business where plaintiff had produced a purchaser ready, willing and able to buy and who actually offered to buy on the stipulated terms.
A written contract of doubtful meaning must be construed against the party who prepares it. Cole v. Pursley, 86 Ga. App. 452 (2) ( 71 S.E.2d 575); Wilcox, Gibbs Co. v. Owens, 64 Ga. 601, 603; Benevolent Burial Assn., Inc. v. Harrison, 181 Ga. 230, 239 ( 181 S.E. 829); Howkins v. Atlanta Baggage Cab Co., 107 Ga. App. 38, 42 ( 129 S.E.2d 158). Here the printed agreement was drawn up by plaintiff and will be construed against him.
There being no evidence that plaintiff ever produced a purchaser for the business on the stipulated terms, plaintiff was not entitled to recover a commission under the quoted provision.
However, the court was authorized to find that the grant of an option to LeCroy amounted to a breach of the agreement insofar as it gave plaintiff the exclusive right to sell, as the option clearly undermined that right. We do not decide whether the transaction with LeCroy amounted to a sale by defendant within the term of the agency. As plaintiff expressly abandoned Count 1 of the petition, he could not recover a commission based on a sale by defendant. Nevertheless, a breach having occurred by the transaction generally described in Count 2, the court was authorized to give judgment for plaintiff in some amount ( Code § 20-1409) although the recovery could not be predicated on one of the provisions of the agreement specifically providing for payment of the commission. Thus the court did not err in denying defendant's motion for nonsuit.
However, the damages authorized did not include any amount for loss of profits where there was no evidence showing to a reasonable certainty that plaintiff could and would have sold the business on the stipulated terms within the term of the agency. In this connection see Wellinger v. Crawford, 48 Ind. App. 173 ( 93 N.E. 1051); Brown v. Maris, (Ind.App.) 147 N.E.2d 915, 918; Crawford v. Cicotte, 186 Mich. 269 ( 152 N.W. 1065); Fairchild v. Rogers, 32 Minn. 269 ( 20 N.W. 191); Sinden v. Laabs, 30 Wis.2d 618 ( 141 N.W.2d 865). Speculative damages — the loss of conjectural profits — are too remote and uncertain to be recoverable. E.g., Red v. City Council of Augusta, 25 Ga. 386, 390. The only damages actually proved were plaintiff's expenses in the amount of $96.90, incurred in trying to sell the business.
The judgment in the amount of $2,950 was excessive and was not authorized by the evidence.
3. On cross appeal plaintiff complains that the court erred in computing the amount of the commission on the basis of a sale price of $29,500 rather than $40,000. The alleged error was harmless to plaintiff.
Judgment reversed on the main appeal; affirmed on the cross appeal. Hall and Quillian, JJ., concur.