Opinion
34285.
DECIDED NOVEMBER 8, 1952.
Complaint; from Fulton Civil Court — Judge Lowe. August 1, 1952.
Bryan, Carter, Ansley Smith, L. F. McDonald, for plaintiff in error.
Paul Cadenhead, Nall Sterne, contra.
The evidence sustained the finding of the trial judge for the defendant surety, in that a breach of the real estate broker's license bond sued upon was not shown, and it was not error to overrule the plaintiff's motion for a new trial on the general grounds.
DECIDED NOVEMBER 8, 1952.
Mrs. Jessie B. Pfeffer brought suit against the General Casualty Company of America, as surety on Gordon J. McNabb's real-estate broker's license bond, for $500 damages arising out of an alleged breach of the bond by McNabb, who, it was alleged, promised to sell the house of the plaintiff and her husband without charging a broker's commission, sold the property, but has refused to pay to the plaintiff or her husband earnest money of $500 which was collected from the purchaser as a part of the purchase price. In its answer, the defendant admitted only that it had issued the bond sued on, which was attached to the petition. The bond was in the sum of $1000, "to secure and save harmless all persons who may be injured or damaged by any wrongful act or default of said Gordon J. McNabb, real-estate broker, or his agents and employees." The condition of the bond was stated as being "such that if the said Gordon J. McNabb shall comply with the provision of the act governing the licensing of real-estate brokers, then this obligation to be void; otherwise to remain in full force and effect."
The case was tried before a judge without a jury, and the following facts were brought out by the testimony of the plaintiff and her husband, which was not controverted: The plaintiff and her husband owned a house on Haven Ridge Drive in 1950, and in the spring of that year McNabb showed them a house on Nancy Creek Road, which they agreed to buy at a certain price if McNabb would sell their house on Haven Ridge Drive for $21,000 net. McNabb said that he would sell the Haven Ridge Drive property and charge no commissions for making this sale but would secure his entire remuneration from the sale to the plaintiff and her husband of the property on Nancy Creek Road. Both sales were closed, the Haven Ridge Drive property being sold for $21,000 to one Feiertag, who had paid $500 as earnest money to McNabb before signing the sales contract. Pfeffer was not familiar with the contents of the sales contract with Feiertag, did not read every word of it, and did not know that a provision for broker's commission was in it. Pfeffer was present when the sale was closed and paid attention to the transaction; he knew then that McNabb had the $500 earnest money, but McNabb was in New York at the time, and Pfeffer went ahead and closed the sale because he was anxious to get the money to pay for the house on Nancy Creek Road. The following notation on the Feiertag contract, "$500 accepted as full commission, /s/ McNabb Realty Co., by W. G. Melton," was not on the paper when Pfeffer signed it, and he didn't notice it until later.
The defendant introduced the sales contract for the two tracts in question. The contract with Feiertag recited that "Buyer has paid to the undersigned McNabb Realty Company, Agent, $500 as earnest money, to be applied as part payment of the purchase price of said property at the consummation of this sale." Other dispositions of the earnest money were to be made if the sale was not consummated. This contract further provided that "In negotiating this contract Agent has rendered a valuable service and Seller agrees to pay Agent commission in accordance with the schedule printed on the reverse side hereof. . . Agent may enforce this contract to the extent of his commissions due hereunder against any part liable therefor under the terms hereof. This contract constitutes the sole and entire agreement between parties and no modification hereof shall be binding unless attached hereto and signed by each; and no representations, promises or inducements shall be binding upon either party or Agent except as herein stated."
The applicable schedule of commissions was as follows: "A. In City Limits (or within Metropolitan Area). Improved or vacant property, charge 5% on first $10,000, and 3% on balance."
The trial judge found in favor of the defendant; he overruled the plaintiff's motion for a new trial, on the general grounds, and the plaintiff excepted to that judgment.
The plaintiff contends that it was shown by the uncontroverted evidence in this case that McNabb's real-estate broker's license bond was breached by McNabb's failure to advise the plaintiff or her husband of the provisions of the written contract concerning his commissions, by his failure to account for the $500 received from Feiertag as earnest money, and by acting as agent for both the plaintiff and the seller of the Nancy Creek Road property.
The plaintiff admits in her brief that the parol evidence rule was invoked before the trial court by counsel for the defendant. The effect of that rule is that negotiations in parol, occurring prior to or contemporaneously with the execution of a written contract, are considered as merged therein, and evidence as to parol terms which vary or contradict the terms of the written instrument should be excluded. Code, §§ 20-704 (1), 38-501; Mooney v. Boyd, 86 Ga. App. 369 ( 71 S.E.2d 685); Neuhoff v. Swift Co., 54 Ga. App. 651 (2) ( 188 S.E. 831); Allison v. United Small-Loan Corp., 54 Ga. App. 820 (3) ( 189 S.E. 263). This rule is ordinarily applied in a suit on the contract itself, but it also applies here, as the alleged default of McNabb under the bond sued on was in respect to the relation between the parties as fixed and governed by the real-estate sales contract and especially in respect to the broker's right to commissions under the contract of sale.
McNabb's right to broker's commissions depends, in the present case, upon the written contract to which he was a party, as the evidence does not show fraud in its procurement or deception preventing the plaintiff from reading its provisions. On the contrary, the plaintiff's husband, who was apparently acting for the plaintiff in the transaction, testified that, while he didn't read every word of the contract, he did read the amounts [for earnest money and the price] and was satisfied as to them.
There was no duty on the part of the broker to point out to the plaintiff the specific provisions of the contract for his commissions. As stated in Ware v. Ware Harper, 20 Ga. App. 202 (2) ( 92 S.E. 961): "The defendant could read and write, and there was no trick, artifice, or fraud practiced upon him which prevented him from reading the contract. The relation between the parties was that of landowner and real-estate agent employed for the purpose of negotiating a sale of the land. In respect to the services to be rendered by the real-estate agent, a relation of confidence existed between the owner and the agent. In respect to the compensation to be paid to the agent by the owner, the parties dealt at arm's length." Also see Horsley v. McLeod, 24 Ga. App. 1 ( 100 S.E. 12), to the same effect.
While it does not appear that McNabb informed the plaintiff that he was retaining the earnest money to be applied upon his commissions, nevertheless, it does appear that the plaintiff knew that McNabb had the money and was retaining it; and, since the $830 due as commissions under the contract selling the Haven Ridge Drive property to Feiertag exceeded the $500 earnest money paid by Feiertag to McNabb, McNabb had a right to apply the earnest money against the amount owed to him for his commissions by the plaintiff. See Lurz v. John J. Thompson Co., 86 Ga. App. 295 ( 71 S.E.2d 675). The contract provides that the agent may enforce it to the extent of his commissions due thereunder against any party liable therefor, and so the agent or his surety, being in privity with the agent, may rely upon this provision of the contract in the present suit on the agent's bond.
In respect to the contract between the plaintiff and Feiertag, under which the commissions contended to have been forfeited were due, the evidence does not show that McNabb also represented Feiertag, nor does it appear that the dual agency with respect to the other contract, by which the plaintiff bought the Nancy Creek Road property, was undisclosed. Both contracts provided that "notice of dual agency is hereby given and accepted by all parties." It is only an undisclosed dual agency which results in the forfeiture of an agent's commissions.
The cases cited by the plaintiff do not involve, as does this case, a parol promise that commissions would not be charged for the broker's services; instead they deal with the effect of a breach of an agent's duty in performing his services; i. e., in his failure to disclose the solvency or financial ability of the purchaser ( Reisman v. Massey, 84 Ga. App. 796, 67 S.E.2d 585; Williamson, Inman Co. v. Thompson, 53 Ga. App. 821, 187 S.E. 194); in his failure to account for funds received and to discharge the duties of the agency contract ( Allen v. Southern Insurance Securities Corp., 54 Ga. App. 316, 187 S.E. 714); in misrepresenting the amount of an offer made ( Peevy v. Wilkes, 48 Ga. App. 114, 172 S.E. 108; Pollock v. Skelton, 15 Ga. App. 1, 82 S.E. 381); and in misrepresenting the value of the property being sold, the buyer's attitude and power to force the principal to make a deed, the agent's right to commissions after being forbidden to sell, and the effect of the contract ( Williams v. Moore-Gaunt Co., 3 Ga. App. 756, 60 S.E. 372). These cases do not require a ruling in the present case different from the one made.
The evidence sustained the finding for the defendant, in that no breach of McNabb's real-estate broker's license bond was shown, and the trial judge did not err in overruling the plaintiff's motion for a new trial.
Judgment affirmed. Felton and Worrill, JJ., concur.