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ELLIS v. VON KAMP et al.
Action for commissions. Richmond Superior Court. Before Judge Kennedy. March 26, 1959.
GARDNER, Presiding Judge.
Where, as here, a defendant enters into a contract with the plaintiffs, who were real-estate brokers, for them to sell an entire certain lot, belonging to him; and it appearing that the defendant, after said brokers had worked upon and procured prospective buyers for same, did, without any fault on the part of the plaintiffs, thereafter sell all of such property to the principal and most financially responsible of the prospects procured by the plaintiffs, and with whom these brokers had been dealing; and it appearing that such prospective buyer was ready, willing and able to buy the entire property, and did do so, the verdict of the jury against the defendant owner of said property, and in favor of the plaintiffs, as such real-estate brokers, for the amount of commissions originally agreed upon for a sale of the entire lot, was authorized under the evidence, not contrary to law and not erroneous for any of the reasons assigned.
Southern Finance Corporation (hereinafter called the first plaintiff) and Camilla Von Kamp (hereinafter called the second plaintiff) brought a suit in the Superior Court of Richmond County for damages, alleging that the first plaintiff is a corporation organized under the Georgia laws with a place of business in Augusta, Richmond County, Georgia, and is a duly licensed real-estate broker in this state; that the second plaintiff is a duly licensed real-estate broker of the state that J. Frank Ellis (hereinafter called the defendant) is a resident of Richmond County, Georgia.
The first amendment to paragraph 4 of the petition deleted 13 words of that paragraph. The second amendment stated that paragraph 4 was stricken, but later in the amendment stated that a paragraph was added to paragraph 4. Assuming that counsel wanted the paragraph stricken, we will proceed with the allegations: The petition, as amended the second time, alleged that on November 8, 1956, and at all times until the property was sold by the defendant to Mamie Bland Goodwin, the defendant was the owner of an improved lot of land at the northwest corner of Milledge and Cumming Roads in Augusta; that on or about November 8, 1956, the defendant employed the first plaintiff as a real-estate broker to sell the above-mentioned property for $42,000 gross, subject to 5% commission to be paid to the first plaintiff in the event of a sale; that pursuant to this employment the first plaintiff, through its agent Richard K. Miller, advertised the property for sale and contacted Mrs. J. Bland Goodwin, Jr. (?) as a prospect for the purchase of the property as a home for her daughter, Mrs. Catherine Fernald; that the prospect did not immediately purchase the property and that thereafter the first plaintiff was advised by the defendant that the property was withdrawn from sale. (This allegation appears in paragraph 7 of the second amendment). The petition further alleged that on or about May 8, 1957, the defendant suggested to the second plaintiff that she sell the property to Mrs. J. Bland Goodwin, whereupon the defendant was advised by the second plaintiff that Mrs. Goodwin was the prospect of the first plaintiff and that she could not show the property to that prospect unless it was agreed that she and the first plaintiff work together on the sale; that on or about May 8, 1957, the defendant advised the first plaintiff that he desired to negotiate for the sale of the property to Mrs. Goodwin through the second plaintiff, but did not want to do so until an agreement was reached between the two plaintiffs regarding the sale, so that the defendant would not become liable for two real-estate commissions in the event the sale was consummated; that on or about May 15, 1957, the two plaintiffs agreed with each other and with the defendant that they would work together on the sale of the property to Mrs. Goodwin; that about May 17, 1957, the second plaintiff, with the cooperation of the first plaintiff, showed the property to Mrs. Mamie Bland Goodwin and her son, J. Bland Goodwin and her son's daughter, Mrs. Fernald; that on this occasion Mrs. Goodwin, Sr. stated to the defendant in the presence of the second plaintiff that she was interested in purchasing the property as a home for her granddaughter, Mrs. Fernald; that on August 19, 1957, the defendant sold the property to Mrs. Goodwin, Sr., the prospect first developed by the plaintiffs, the consideration being $37,500; that the defendant did not close the sale through either of the plaintiffs, but closed the sale without their knowledge; that after the second plaintiff discovered the same she
notified the defendant of her right to a commission of 5% on the sale price of the property; that the plaintiffs, for their joint efforts in procuring the purchaser of the property, a purchaser ready, willing and able to buy, and who did actually buy the same from the defendant, they thereupon became jointly entitled to a commission of $1,875, such sum being 5% of the purchase price paid by Mrs. Goodwin to the defendant; that the defendant refused to pay the commission, had never paid same and that it is due the plaintiffs, together with interest at 7% from August 19, 1957.
The defendant answered and, denying liability, moved that a verdict be directed in his favor and against the plaintiffs. This motion was denied. The jury rendered a verdict for the plaintiffs and judgment was entered for $1,500 against the defendant and in favor of the plaintiffs, and the defendant then made a motion for judgment notwithstanding the verdict and this motion was denied. It is on this ruling that the case is here for review.
The pleadings and the evidence show a contract in parol for the sale of certain realty with a five percent commission to be arranged between the plaintiff brokers. After the plaintiffs had negotiated with the prospective purchaser for some time and had shown the property to her many times, the defendant owner of the property was advised by the first plaintiff to list the property with other brokers. This certainly did not indicate or give the defendant authority to sell the property to a prospective purchaser being developed by the plaintiffs. Within a short time thereafter the defendant sold all of this property to the prospective buyer, same being bought by her for the purpose of a home for her granddaughter.
The evidence fails to demand a verdict against the plaintiffs under the law and the pleadings.
The real-estate brokers were engaged by the defendant under an oral agreement to sell certain of his real estate, being all of said Milledge Street property, and for many months, after procuring certain prospects to purchase same, they took such prospects to the premises and showed them such realty and performed many acts toward the performance of the agreement. There is no dispute between them as to the amount of commissions due, if the defendant is liable, having withdrawn part thereof from sale and thereafter having sold all to said purchaser. They did, at the request of the owner upon procuring a likely prospect, the one to whom all the property was eventually sold, agree that five percent commission be paid to them, such sum fixed by the Augusta Real Estate Board.
The plaintiffs, one a corporation and the other an individual, were engaged by the defendant under an oral agreement to sell all of a certain described lot of the defendant owner in Augusta, both that improved and unimproved. They procured certain prospective purchasers, including the grandmother of one of those interested in buying the realty, whereon the house was situated, and who evinced a very pronounced interest in acquiring this realty for use as a home for her granddaughter, Mrs. Fernald, but when the defendant stated that he did not feel it was fair to pay two commissions, that is, to each broker a five percent commission for a sale thereof, the plaintiffs, at his suggestion got together and agreed to divide the commission earned for any sale between them. The plaintiffs, showing this property and performing many services directly dealing with these prospects, including the grandmother of Mrs. Fernald, Mrs. Goodwin, performed this contract to sell all of this particular realty in so far as they could. See Code 20-1103 and ann. If a contract for the sale of realty is partly performed by the plaintiff brokers and the complete performance thereof is rendered impossible by the act of the owner, the defendant herein, who then sold said property to their prospect, whether the contract is written or oral, did thus deprive the brokers of their commissions according to such agreement, he may be held liable therefor. See Code 20-1103, 20-1104.
The contract herein involved was severable and the plaintiffs performed same in so far as they were able to do so, but were prevented (for a period of time) from ultimate consummation of the contract by reason of the act of the defendant in not wanting to sell all the property, but for a time the defendant indicated that he wanted to sell the house, and lot separately from the adjoining lot. However, as stated hereinabove, he finally sold the whole property to the prospective buyer with whom the plaintiffs had been dealing. The suit is not one upon any quantum meruit basis, but a suit for the commission they would have earned of five percent, to be split between them. The plaintiffs are entitled to recover their commission of five percent, which they have earned, even though the agreement to sell was a parol agreement. See Code 96-112 and also Toney v. Everett, 68 Ga. App. 703 (23 S. E. 2d 500). Where the defendant fails to perform or renders the full performance of a sales contract impossible, the plaintiffs may bring suit for damages or on account and recover the amount of commission due them had the contract been performed by them by selling same to the prospective purchaser, procured by them, and ready, willing and able to buy, and to whom the defendant later sold such property. See Code 20-1104; Bancroft v. Conyers Realty Co., 63 Ga. App. 106 (10 S. E. 2d 286); Lloyd v. Norman, 77 Ga. App. 598, 602 and cit. (49 S. E. 2d 131).
The cases of Jordan v. Dolvin Realty Co., 54 Ga. App. 472 (188 S. E. 304), Fox v. Von Kamp, 52 Ga. App. 776 (184 S. E. 645), and Landrum v. Lipscomb-Ellis Co., 62 Ga. App. 649 (9 S. E. 2d 205), cited by the defendant, are not in point and are distinguishable.
It follows that a verdict was under the pleadings and evidence not demanded for the defendant, and the verdict and judgment for $1,500 for the plaintiffs was, under the facts, not erroneous for any reason contended.
Congdon, Holley & Smith, William P. Congdon, contra.
Fulcher, Fulcher, Hagler & Harper, J. Walker Harper, Killebrew, McGahee & Plunkett, C. Wesley Killebrew, for plaintiff in error.
DECIDED JUNE 17, 1959 -- REHEARING DENIED JULY 10, 1959 AND JULY 27, 1959.
Saturday May 23 00:39 EDT

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