Opinion
39366.
DECIDED FEBRUARY 28, 1962.
Action for commission. DeKalb Civil Court. Before Judge Morgan.
Sam G. Dettelbach, for plaintiff in error.
Fine Rolader, D. W. Rolader, contra.
1. An allegation that a real estate broker is "duly licensed" is, without more, sufficient on general demurrer to avoid the bar of Code § 84-1413.
2. Where a real estate sales contract provides that the broker is made a party thereto to enforce his commission rights and that liability for the commission can be based on the "seller's inability, failure or refusal to convey. . . ," an allegation that the seller "fails and refuses" to close the transaction will withstand a general demurrer.
DECIDED FEBRUARY 28, 1962.
This case involves a broker's suit for real estate commission against the owner-seller. The broker procured a signed contract between the owner-seller and a prospective purchaser, but the seller allegedly refused to go through with the sale. The seller's general demurrer was overruled and that ruling is here for review.
1. The seller's first attack is on that portion of the petition which alleges "That plaintiff herein is a duly licensed [sic] real-estate broker engaged in the real estate business is [sic] the greater Atlanta area." The seller's contention is that this does not allege a sufficient compliance with Code Ch. 84-14, relating to the licensing of real estate brokers. Code § 84-1413 prohibits the enforcement of any claim for commission by an unlicensed broker. A number of cases are cited for the proposition that compliance with the licensing provisions must be specifically pled in order for the petition to withstand a general demurrer. Mayo v. Lynes, 80 Ga. App. 4 (1) ( 55 S.E.2d 174); Cline v. Crane, 90 Ga. App. 192 (1, 2) ( 82 S.E.2d 175) and Hale v. Chatham, 91 Ga. App. 519 ( 86 S.E.2d 536). The original records in these cases reveal that, as to this requirement, in Mayo and Cline there was no allegation of any sort and in Hale the allegation was "that plaintiff is in the business of selling real estate and businesses as a business broker." The case of Brewer-Head Co. v. Jackson, 95 Ga. App. 648 ( 98 S.E.2d 167) is pointed to as setting the standard of alleging compliance which must be met. There the allegation was that the brokers were "duly licensed as such agents and brokers by the Georgia Real Estate Commission." The allegation here lies between the complete lack of Mayo, Cline and Chatham, supra, and the "perfection" of Brewer-Head.
In at least two cases, an examination of the original record confirms the implication of the opinions that allegations substantially similar to the one under consideration have been approved as against general demurrers. In Selton v. Dowling, 79 Ga. App. 690 ( 54 S.E.2d 763) the allegation was that plaintiff was a "regular, duly licensed real estate agent and broker." The allegation in Teague v. Adair Realty c. Co., 92 Ga. App. 463 ( 88 S.E.2d 795) was that plaintiff was "duly licensed to act as a real estate broker." Bearing in mind that it is not even necessary that this point have been raised in the trial court (see Hale v. Chatham, 91 Ga. App. 519, supra, and cases cited), the allegation here that plaintiff is "a duly licensed real estate broker" imports that he is licensed by the agency or authority which the law provides may grant such licenses. It is thus equivalent to an allegation that he is duly licensed by the Georgia Real Estate Commission. Generally, "duly done" means done according to law. See Ingram v. Smith, 62 Ga. App. 335 (1) ( 7 S.E.2d 922); Tyler v. Jones County Bank, 78 Ga. App. 741 ( 52 S.E.2d 547); Black, Law Dictionary, 591. This allegation is sufficient to withstand general demurrer.
2. The sales contract provided for closing within thirty days of the acceptance of the contract. The petition alleges that closing was to be within ten days, but the contract, attached as an exhibit, controls. Houston v. Pollard, 217 Ga. 184, 189 ( 121 S.E.2d 629). The seller's second line of defense is that there is no allegation of tender within the contract provisions. The broker alleges that the purchaser is "ready, willing and able" to complete the transaction (see Code § 4-213) but that the seller "fails and refuses" to close despite the purchaser's repeated demands to do so. The contract provides, inter alia, relative to the broker's commission, that: "If sale is not consummated because of seller's inability, failure or refusal to convey marketable title, seller shall pay full commission to broker. . ."
As we view it, this clear and unambiguous contract provision made the seller liable for the broker's commission on his "failure and refusal" to convey the property in question. This is exactly what is alleged in the petition. It is to be noted that the sale here is not contingent on the happening of any event, such as the buyer procuring a loan. Lack of such a contingency distinguishes this case from North Fulton Realty Co. v. Kane, 105 Ga. App. 274 ( 124 S.E.2d 405), and Teague v. Adair Realty c. Co., 92 Ga. App. 463, supra, and other cases.
For the reasons given, it was not error to overrule the seller's general demurrer.
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.