Opinion
40500.
DECIDED JANUARY 27, 1964.
Action for commissions. Cobb Superior Court. Before Judge Henderson.
Vernon W. Duncan, for plaintiff in error.
Reed, Ingram, Flournoy Custer, Robert E. Flournoy, Jr., contra.
1. A real estate agency contract granting to the agent the exclusive right and authority to sell the property described in the contract and in which contract the owner agrees to pay commissions whether such sale be made by an agent or the owner or by any other person acting for the owner in the owner's behalf, entitles the agent to his commissions, even though the property is sold by the owner to a purchaser not procured by the agent where the agent performs his portion of the contract as agreed upon, that is, "to list and endeavor to sell the property" described in the contract. Dobbs v. Conyers, 36 Ga. App. 511 (1, 2, 3) ( 137 S.E. 298). The present case is distinguishable from those cases wherein there is no agreement to pay commissions upon sales made by the owner even though there may be an exclusive listing. Garfunkel v. Byck, 28 Ga. App. 651 ( 113 S.E. 95); Irish v. Fisher, 74 Ga. App. 631 ( 40 S.E.2d 588); Bradbury v. Morrison, 93 Ga. App. 704 ( 92 S.E.2d 607); Moore v. May, 10 Ga. App. 198 ( 73 S.E. 29). The present case is also distinguishable from Cole v. Pursley, 86 Ga. App. 452 ( 71 S.E.2d 575), for the reason that while in that case there was an agreement to pay commissions upon a sale made by the owner, under certain conditions, the facts show that these conditions were not met, and the agreement to pay commissions did not apply under the particular circumstances.
2. It not affirmatively appearing that the property described in the copy of the deed attached to the petition as Exhibit "A" and the agency contract attached to the petition as Exhibit "B" was not the same property, but on the contrary it being alleged that it was the same property, the petition did not fail to set forth a cause of action on the ground that the property involved was not sufficiently described or identified. Orr v. Smith, 102 Ga. App. 40, 43 ( 115 S.E.2d 601).
3. The trial court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Felton, C. J., and Frankum, J., concur.