In order for one to recover real-estate commissions under a contract of listing, as distinguished from a contract of purchase and sale of real property, so far as the identification of the property described in the listing contract is concerned, all that the broker is required to do is to allege and prove that the minds of the contracting parties met at the time of the contract on what property was being listed for sale.
Orr Realty Company, a partnership composed of Hazel B. Orr and Harry L. Orr, sued Noah Smith to recover a real-estate commission alleged to be due under a written contract attached to the petition. The petition alleged: "That plaintiffs were on January 3, 1959, and are duly licensed real-estate brokers operating in Atlanta and Fulton County, Georgia. That on and before January 3, 1959, the defendant herein was the owner of a house and lot in Fulton County, Georgia, known as 323 North Coleman Road, Roswell, Georgia, and of another house and lot in Fulton County, Georgia known as 325 North Coleman Road, Roswell, Georgia. That on January 3, 1959, the defendant, Noah Smith, entered into an exclusive sales agency contract with plaintiffs, copy of said contract being attached hereto, marked Exhibit 'A', and maple a part of this paragraph and petition. Under said contract plaintiffs were granted the exclusive right and authority to sell the aforementioned houses and lots for a period of sixty (60) days from January 3, 1959. That under the terms of said contract, plaintiffs are entitled to a real-estate commission on the sale of said properties in the event said properties are sold within three (3) months from the termination of the contract to a purchaser to whom said properties are submitted by plaintiffs during the life of the contract. That upon the execution of said contract, plaintiffs did fully perform all of their obligations thereunder in that plaintiffs did list said properties for sale, did advertise the same, and did endeavor to sell said properties for the sales prices as shown on said contract. That while said exclusive sales agency contract was in full force and effect, plaintiffs did submit the property at 323 North Coleman Road to Mrs. Homer B. Weatherford, and that plaintiffs did endeavor to sell this property to the said Mrs. Homer B. Weatherford; and that plaintiffs did submit the property at 325 North Coleman Road to John Q. Roberts and did endeavor to sell said property to the said John Q. Roberts. That the aforesaid prospective purchasers were procured by plaintiffs as real-estate brokers and that plaintiffs herein were the procuring cause of the subsequent sale of said properties to said prospective purchasers as will be more fully set forth hereinafter. That during the term of said exclusive sales agency contract, the aforementioned prospective purchasers did not purchase said properties. Nevertheless, on or about March 11, 1959, defendant sold to Mrs. Homer B. Weatherford the property known as 323 North Coleman Road, Roswell, Georgia, and on or about April 9, 1959, defendant sold to John Q. Roberts the property known as 325 North Coleman Road, Roswell, Georgia, said properties being the same properties covered by the exclusive sales agency contract marked Exhibit 'A'. Plaintiffs allege that the sales of said properties to John Q. Roberts and Mrs. Homer B. Weatherford were made by defendant within three (3) months from the termination of the exclusive sales agency contract attached hereto as Exhibit 'A' and that said purchasers were persons to whom the properties were submitted by plaintiffs during the term of said exclusive sales agency contract, and that by reason of said contract the plaintiffs are entitled to a real-estate sales commission on the property at 323 North Coleman Road in the sum of seven hundred twenty-five dollars ($725), and plaintiffs are entitled to a real-estate sales commission on the property at 325 North Cole-
man Road in the sum of seven hundred seventy-five dollars ($775). Plaintiffs allege that they have made demand upon the defendant for the payment of said commissions and that defendant fails and refuses to pay the same." The contract attached to the petition provides, omitting immaterial matter: "Exclusive sales agency contract, Jan. 3, 1959, to Orr Realty Co.--In consideration of your agreement to list and endeavor to sell the property hereinafter described, the undersigned, being the owner thereof, hereby gives you the exclusive right and authority to sell the property hereinafter described, for a period of 60 days from the date of this instrument. I hereby further agree upon the considerations hereinabove mentioned, to pay schedule of charges and/or rates of commission covering such transactions, as is now in effect, whether such sale be made by you or me, or by any other person acting for me or in my behalf, upon the terms hereinafter mentioned, or any other terms acceptable to me; or if the property is afterwards sold within three (3) months from the termination of this contract, to a purchaser to whom it was submitted by us or you during the life of this contract. Property: 323 North Cole Rd.--$14,500. Street Number 325 North Coleman Rd.--$15,500. Legal description: Butane gas--Roswell City water--100 x 329, could get 1,000. 20 yrs. 6%., 323--1341 sq. ft., 325--1384 sq. ft. Sale price: As shown above. The undersigned hereby accepts the above agency contract on the terms and conditions therein set forth. /s/ Noah Smith, Owner, N. Coleman Rd., Roswell, Ga." The court sustained an oral motion in the nature of a general demurrer to dismiss the petition and the plaintiff excepts.
A contract listing real property for sale with a broker is not subject to the same rules as a contract for the purchase and sale of real property. It does not come with in the statute of frauds so as to require that it be in writing. Lingo v. Blair, 32 Ga. App. 111 (122 S. E. 802); Cantrell v. Johnston, 74 Ga. App. 74 (2) (38 S. E. 2d 893) and cases cited. It was stated in Crawford v. English, 26 Ga. App. 563, 568 (106 S. E. 621): "We do not think that the description of property placed in the hands of a broker for sale needs be as definite and complete as that which should be made in deeds of conveyance." We think that this should be the true rule and we are of the opinion that it is the majority rule over the nation even in States which require a brokerage contract, or contract of listing, to be in writing. 80 A. L. R. 1466. We are of the opinion that all that is necessary to recover on such a contract is to allege and prove that the property attempted to be described in the contract is the same property intended to be listed by the owner and offered for sale by the broker. When this is shown to the satisfaction of the triers of fact we do not see how any harm can be done, especially in view of the fact the contract is not required to be in writing. To illustrate: the owner of a house shows a broker to a house, points it out and offers him a commission to sell it for a fixed price or on other terms. The property has not been described, but could it reasonably be said that the broker did not earn a commission if he sold the house pointed out to him and otherwise complied with the contract of listing? We think not. We think the petition in this case is sufficient to allege as against general demurrer that the houses sold were those listed. If the broker showed and sought to sell the wrong houses and did not interest the purchasers in the right ones it could be shown as a matter of defense. All of the cases cited by the defendant in error are cases involving contracts of purchase and sale and not mere listing contracts.
The court erred in sustaining the motion to dismiss the petition.