Opinion
35818.
DECIDED SEPTEMBER 22, 1955.
Action on broker's contract. Before Judge Thomas. Ware Superior Court. May 12, 1955.
Arthur B. Lott, Jr., for plaintiff in error.
Blount Gibson, contra.
1. The pleadings and evidence authorized the charge of the principles of law relating to agency brokerage contracts to sell realty, as follows: (1) where no time limit is fixed by the contract in which the agent shall sell the property of the principal on a commission basis, such agent shall have a reasonable time to perform the service, and what is a reasonable time is a question of fact for the determination of a jury; (2) when the owner of real estate has authorized a broker to sell the property without setting a time limit, he is bound to exercise good faith toward his broker, and not captiously withdraw the property for the purpose of defeating the commissions about to be earned; (3) where the owner of property employs the services of a broker to assist in the sale thereof for a commission based on a percentage of the purchase price, and after using the broker's efforts to help in the sale, proceeds to sell directly to the purchaser who was interested in the property through the efforts of the broker, even for a less price than that quoted to the broker, the owner would be liable for the commission if the broker's efforts were the procuring cause of the sale. The excerpts from the charge complained of substantially state these principles.
2. The evidence authorized the jury to find that the defendant employed the broker to sell her property for a commission based on a percentage of the purchase price within a reasonable time, and that the owner within such time herself sold the property to a purchaser procured through the efforts of the broker, for the purpose of defeating his commissions. Although the sale was for a less amount than that quoted the broker, his commission was nevertheless earned, and a verdict in his favor is authorized.
DECIDED SEPTEMBER 22, 1955.
Sam E. Walker, a duly licensed real-estate broker, filed suit against Ida D. Spence, alleging that the defendant listed certain property with him as exclusive agent; that he obtained a prospect, Joel Tanner, who offered to buy the property for $18,000; that the defendant refused to sell for this price through the plaintiff, but did sell directly to the plaintiff's prospect; that this was done with the intention of avoiding payment of the plaintiff's commission; and that he has earned his agreed 5% commission as the procuring cause of such sale. The defendant answered, setting up that, at the time of the sale, the plaintiff's listing had expired, denying that the sale was consummated through the plaintiff's efforts, and denying that the plaintiff had procured an offer to purchase in the sum for which she subsequently sold the property.
Upon the trial of the case, the evidence was disputed, but that of the plaintiff, in whose favor the verdict was returned, was substantially as follows: that the defendant, through her husband, orally listed the property with him for sale at a price of $20,000, and agreed to pay a commission of 5% of the sale price; that the listing was for an indefinite period of time and was given on May 20, 1954; that he advertised the property and showed it to several prospects; that Joel Tanner offered $16,000, which he was advised the owner would not accept; that Tanner then offered $17,000, putting up an earnest-money check, and this offer was refused by the defendant; that Tanner then told the plaintiff he would consider increasing his offer if the defendant would make some reduction in her asking price, and asked the plaintiff to let him know; that he communicated this to the defendant, who, however, declined to authorize the plaintiff to lower the asking price, although he told her he was morally certain that Joel Tanner would go as high as $18,000 for the property; that about July 1 the defendant's husband asked that the plat be returned, but said nothing about terminating the listing, and that he actually took prospective purchasers to inspect the property in July. Joel Tanner, testifying for the defendant, denied that he had intimated he would pay more than $17,000 until July 3, 1954, when the defendant came to see him and offered to sell him the property for $18,000; he testified, however, that he learned the property was for sale through the plaintiff's advertisement during the latter part of May and he made the $17,000 offer through the plaintiff; that, after this offer was rejected, he was still interested in buying the property provided the defendant would reduce her price, but was not at that time interested in paying more than $17,000 for it; that on July 5 he made an offer to take a 30-day option direct to the defendant, which was accepted, and on July 27 he exercised the option and purchased the property; that he dealt with nobody other than the plaintiff until July 3, when the defendant sought him out and offered to sell for $18,000, and that from the time he first became aware through the plaintiff that the property was for sale until he actually purchased it, his interest in buying it continued.
The defendant, after the verdict and judgment, made a motion for new trial on the general grounds, which was later amended by adding 2 special grounds, and the denial of this motion is assigned as error.
1. Special ground 1 complains, on the ground that it was not justified under the pleadings or evidence, of certain excerpts from the charge, to the effect that, if no time limit for the agency agreement was set, the agency would be for an indefinite period of time; that, under such circumstances, the plaintiff would have a reasonable time within which to sell the property; that what constituted a reasonable time was a jury question; that an owner must exercise good faith toward her agent; that she may not without lawful cause revoke a contract at her mere option before the expiration of a reasonable time for performance; that a sale by the owner within a reasonable time to a customer procured by the agent will render the owner liable; and that the plaintiff would be entitled to commissions if the authority to the authorized agent "contained no time limit, and she sold the property within a reasonable time after granting the plaintiff authority to sell and without revoking his authority, or, if revoked without lawful cause to revoke before the expiration of a reasonable time, and if you further find that the person to whom Mrs. Spence sold the property was procured by the plaintiff." That these propositions are sound as abstract principles of law, see Code § 4-213; Edwards v. Andrews Bros., 24 Ga. App. 645 (1) ( 101 S.E. 775); Hendrix v. Crosby, 76 Ga. App. 191 ( 45 S.E.2d 448); Wood v. Planzer, 73 Ga. App. 731 (1) ( 37 S.E.2d 813). As is above stated, the evidence was in sharp conflict on several issues, one of them being whether the property was sold during the continuation of the agency. The defendant contended that the listing was for a period of 30 or 40 days, and that these 30 or 40 days had expired. The plaintiff contended that the listing was for an indefinite period, that it had not been revoked, and that from May 20 when he took the listing to July 3 when the defendant made her offer direct to the prospect, was within a reasonable time. Since one of the issues was whether the agency agreement was in existence at this time, it was proper for the court to instruct the jury concerning the various manners in which such an agreement might have terminated, together with their legal effect. Accordingly, it was not error to include termination by "revocation without lawful cause," although one party contended that it had not been terminated at all and the other contended it had expired according to its terms. There were still other facts and circumstances, such as that of the defendant sending word to have the plat returned, from which the jury might have been authorized to reach other conclusions arising as inferences from the sworn facts. The charge, therefore, is not error, as further contended, because there was no direct issue as to termination of the contract by revocation, and it could not in any manner have misled the jury into believing they must necessarily find that the plaintiff had revoked the contract. This ground is without merit.
2. The remaining special ground complains of that portion of the charge dealing with the broker's right to recover commissions where his efforts are the efficient procuring cause of the sale, on the ground that it was not authorized by the evidence. As the charge is admittedly sound as an abstract principle of law and only its applicability to the evidence is involved, it is dealt with in connection with the general grounds. The jury was authorized, by accepting all of the broker's testimony, rejecting most of the defendant's testimony, and accepting in part and rejecting in part the testimony of the purchaser ( Brown v. O'Neal, 59 Ga. App. 560, 1 S.E.2d 601), to conclude that during the pendency of an agency, unlimited as to time, the broker communicated to the defendant his belief that the prospect would increase his offer by $1,000; that this was on or after June 12, and the defendant did not at that time indicate that she would reduce her price; but that on July 3 she contacted the prospect directly, and he at that time did accept her reduced offer to sell, which was $1,000 greater than his previously stated offer to purchase; that the prospect's desire to purchase the property had been procured by the plaintiff, and that it had remained constant from the time he first saw the property advertised for sale until he purchased it. In Mendenhall v. Adair Realty Co., 67 Ga. App. 154, 158 ( 19 S.E.2d 740), it is stated: "It is a well recognized rule that where the owner of property has listed it with a real-estate broker to be sold, and the broker procures a prospective purchaser, and the owner with knowledge of this fact intervenes or sells the property to the customer or prospective purchaser procured by the broker, an inference is authorized that the broker has earned a commission and can recover it from the owner." Accordingly, here, one construction of the evidence is such as to authorize a finding that the broker procured a prospective purchaser whom he believed, and so informed the owner, would purchase at a stated price, and that the owner, with knowledge of this fact, intervened and sold the property to the customer, before the conclusion of negotiations between them. The verdict is therefore not without evidence to support it.
The trial court did not err in denying the motion for a new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.