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Before Judge Smith.
DEEN, Judge.
The plaintiff real estate broker suing for commissions under an open listing which allows the seller to independently dispose of the property to a purchaser not procured by the broker has on motion for summary judgment shown facts sufficient to make a jury issue as to whether the real estate firm which eventually bought the property was procured by it, and on the issue that the purchaser, its agents, and the sellers entered into an agreement to bypass the plaintiff and thereby deprive it of earned commissions.
Mitchell, Sr., Mitchell, Jr. and Bagley were tenants in common of a 66-acre tract sold by them to Charles A. Mueller Realty Company as assignee of a contract between the sellers and Southeastern Properties Management, Inc., Mueller being president of both companies. The plaintiff Tucker Real Estate Co., Inc. sued all of these entities (except Southeastern) claiming to be the procuring cause of the sale and entitled to real estate commissions. Mitchell, Sr. was never served and is not a party. The complaint is in three counts: Count 1 is based on an oral contract based on nonexclusive listing given by Mitchell, Sr., to Mrs. Banks, president of the plaintiff company. Count 2 seeks under the same facts to recover on quantum meruit. Count 3 alleges a conspiracy between the various buyers and sellers to enter into a course of dealing by which Mueller Realty rather than the plaintiff would get the benefit of the sales commission. The terms of the final completed sale were, as to price, the same as those in the listing and the original sale contract, the only change being that Mueller Realty, as assignee of the contract, paid a purchase price equal to the sum stated in the contract of sale less the usual real estate commission. The defendants filed motions for summary judgment which were denied in part and sustained in part. In case no. 49002 Mueller Realty Co. and Mueller appeal from the denial of their motion for summary judgment as to Count 3. In case no. 49003 the plaintiff appeals from the grant of a summary judgment as to Count 1 to Mueller Realty, Mueller, and Oliver, and the grant of summary judgment as to all defendants on Count 2. In case no. 49004, Mitchell, Jr. and Bagley appeal from the denial of the motion as to them on Counts 1 and 3. In summary, the trial court's ruling left pending a suit against two of the sellers, Bagley and Mitchell, Jr., based on the oral listing and a suit against them along with the buyer Mueller Realty Company, its president Charles Mueller and its agent Oliver, based on a conspiracy theory.
The chronology of events is briefly as follows: At some time in January, 1969, Mrs. Banks called Mitchell, Sr., who orally authorized a nonexclusive listing of the subject property. Mrs. Banks called on him at his office twice after this, obtained terms, and a plat of the property. On October 31, 1969, Poss, one of the plaintiff's real estate agents, included this among five or six other pieces of property shown to Mueller. They looked at the property for some 5 or 10 minutes without entering on it and Mueller stated he was generally familiar with it because he had been interested in adjacent property. On November 5 Poss spent some 15 minutes showing the property to Oliver, who deposes that he was familiar with its availability prior to this time. On December 3, Mrs. Banks wrote Mitchell, Sr., informing him that Mueller Realty Co. and its agent Oliver were prospects and had been shown the property. Poss called Mueller in November about the property and, as he indicated he was not interested, pursued the matter no further. Sometime during the first week in January, 1970, Mueller told Bagley he wanted to buy. A contract of sale naming Mueller Realty as broker was entered into between the owners and Mueller's company, Southeastern, dated January 28, 1970, which was assigned to Mueller Realty, and the sale was closed May 20, 1970.
1. May Bagley and Mitchell, Jr. be liable for commissions based on the plaintiff's listing with Mitchell, Sr.? Where a broker has been the procuring cause of the sale, even though he has not sold the property, he may collect his commission, but "in determining whether or not a broker was the procuring cause of the sale where there is no exclusive contract to sell, it must be established that (1) the negotiations were still pending between the broker and the prospective purchaser; and (2) the owner was aware that the negotiations were still pending at the time he consummated the sale." Ideal Realty Co. v. Storch, 124 Ga. App. 271 (1, 2) (183 SE2d 520). Whatever may be meant by negotiations being still pending, it is of course obvious that a prospective purchaser may not "get rid of" the agent who has interested him in the property merely by telling him he is not interested when he is in fact interested and is dealing with another agent on the same basis with a continuing intent to purchase. But were the owners Bagley and Mitchell, Jr. aware of this situation if it existed? Mitchell, Sr., was informed that Mueller Realty and Oliver were prospects of the plaintiff on December 3, and Mueller declared his intention to purchase to Bagley approximately four weeks later. Bagley maintains that he knew nothing about the letter to Mitchell, Sr., that he is a tenant in common, and that Mitchell, Sr. could under no circumstances sell more than the latter's own one-third interest in the property nor could he list the interest of the other parties so as to expose them to liability for the commission. The general rule is that one tenant in common cannot bind his nonconsenting cotenants in any disposition of their undivided interest in the common property. Morgan v. Maddox, 216 Ga. 816, 819 (120 SE2d 183). It is established by the affidavits of Mueller, Mitchell, Jr., and Bagley that the latter had no knowledge either of the listing with Mitchell, Sr. or the fact that the plaintiff lead showed the property to Mueller and Oliver. One possibility, however, has not been eliminated, that being that Mitchell, Sr., had the right to act as agent for his co-owners in both listing and selling the property, and some few circumstances might support this hypothesis, including the fact that both Mrs. Banks and Mr. Mueller were referred by one seller to the other as convenience dictated. Therefore, since neither of the requirements which the plaintiff must prove in order to win its case has been finally eliminated at this stage of proceedings, it was not error to overrule the motion for summary judgment on Count 1 as to Bagley and Mitchell, Jr. It was, however, proper to strike the remaining defendants from this count as Mueller, Oliver and Mueller Realty were not parties to the oral listing on which it is based. There are respects in which the facts of this case are similar to Fields Realty & Ins. Co. v. Smith, 123 Ga. App. 342 (180
SE2d 909) on the question of procuring cause. It is true that the plaintiff's case is exceedingly weak, but there are situations where a motion for summary judgment will be denied even though the same facts would authorize the direction of a verdict. See Ray v. Webster, 128 Ga. App. 217 (196 SE2d 175).
2. Did the plaintiff make out a case for conspiracy on the part of the buyer and seller to exclude the plaintiff from commissions? In view of the fact that both Mueller and Oliver swear they were aware of the subject property before the plaintiff showed it to them, the fact that Mitchell, Jr. and Bagley swear they had no notice that the plaintiff claimed either a listing or a sale, and the scantiness of any testimony relative to pending negotiations between the plaintiff and the buyers, it may well be that on the trial this case will be controlled by the rules of law set out in Fields Realty & Ins. Co. v. Smith, supra. In the event it is not, however, the defendants must meet the charge of conspiracy. The agreement to bypass a procuring realtor may be proved by circumstances. "The essential element of conspiracy is a common design, but it is unnecessary to prove that the parties met together either formally or informally or that they entered into any explicit or formal agreement. It is sufficient if it be shown that two or more persons, either positively or tacitly, came to a mutual understanding that they would accomplish the unlawful design." Outside Carpets, Inc. v. Industrial Rug Co., 228 Ga. 263, 269 (185 SE2d 65). Assuming the facts entitling the plaintiff to commissions under the open listing are proved, it further appears that Mueller might have contacted the owners the very day Poss called his attention to the property; he might have sent Oliver, agent of the defendant real estate company of which he was president, to get further information from Poss the next week; he announced his intention to purchase within six weeks, after informing Poss he was not interested; he took the sale contract in the name of one company of which he was president and it was then assigned to the real estate company at a saving of $1,000 per acre purchase price to the buyer and $200 per acre to the seller. We therefore hold this count was properly left for jury determination. The question involved here is fraudulent intent, shared by seller and purchaser. The rule as to the seller is "that where the broker has failed to procure an offer to buy upon the terms stipulated and the owner has not relinquished his right to sell the property himself to authorize a recovery of commissions it must appear that the owner negotiated the sale directly to the customer procured by the broker with a fraudulent intent to deprive the broker of his commission." Kuniansky v. Williams, 101 Ga. App. 678 (115 SE2d 204). If this is established the further question is whether the buyer shared in the intent and the acts by which it was consummated.
3. Was the quantum meruit count properly stricken? If the plaintiff is entitled to recover, it must be under the terms of the oral listing allegedly giving it the right to show and sell the plaintiff's property. The owner has his option to sell to any person he wishes unless he has by contract placed restrictions on it. In the absence of contract the fact that the plaintiff informed prospective purchasers the property was for sale and the terms of sale would entitle it to nothing from either the seller or buyer. This record shows no facts under which the plaintiff would be entitled to a recovery against either the seller or buyer in the absence of a listing agreement.
Judgment affirmed in each case. Hall, P. J., and Stolz, J., concur.
Alston, Miller & Gaines, Ronald L. Reid, for Mitchell.
Ernest J. Nelson, Jr., Davis & Stringer, Robert H. Stringer, for Tucker.
Hodges, Oliver & Duckworth, W. H. Duckworth, Jr., for Mueller.
Friday May 22 11:24 EDT

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