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Complaint; from DeKalb Superior Court. Judge Guess. July 11, 1951.
1, 2. (a) Where property has been listed for sale with two or more real-estate brokers, and one of them, with the knowledge of the owner, has interested a customer in the purchase, and, while negotiations with the broker are still pending, the owner proceeds to close the sale with the same customer through another broker, it becomes a jury question as to which broker was the procuring cause of the sale, the claim of neither broker being excluded as a matter of law.
(b) In such a case the owner proceeds at his peril in effecting the sale and paying the commissions to the broker through whom the sale was closed.
3. It is never error to refuse to direct a verdict.
4. It is not error to refuse a request to charge, the substance of which is sufficiently covered by the charge given; nor is it error to refuse a request which is not abstractly correct.
The defendant, answering, admitted that the plaintiff had mentioned to him the Hastings Company as a prospective purchaser; but alleged that the listing of his property was not exclusive, and that the Hastings Company offered to purchase the property through John C. Baldwin Jr., in October, 1947, and had never made any offer so to purchase through the plaintiff; and that, as a result of negotiations effected through the said Baldwin, the property had been sold, and the commissions for effecting said sale had been paid to him.
The issue thus made was tried before a jury, which returned a verdict for the plaintiff for $2300.
The defendant filed his motion for new trial on the general grounds, and amended by the addition of eleven special grounds, six of which assigned error on the court's refusal to give requests in charge, four on excerpts from the charge given, and one on the refusal to direct a verdict for the defendant. This motion was overruled and the defendant excepts to this court.
1. As to the general grounds, the jury would have been authorized to find for the defendant under the sharply conflicting evidence, particularly those parts which would have authorized it to find that it was only through the efforts of Mr. Baldwin and others working in connection with him that an arrangement was worked out with the City of Atlanta, whereby the purchaser's former property, which was to be condemned by the city for street improvements, was purchased by the city, the proceeds being used by the Hastings Company to consummate the purchase of the defendant's property. However, the point at issue was, who was the proximate, procuring cause of the sale, the plaintiff or the broker through whom the sale was finally closed? And this being a question of fact for the jury, under proper instructions from the court, its finding as it did, being equally authorized by the evidence, will not be reversed by this court.
2. Special grounds 8 through 11--which are substantially elaborations of the general grounds--assigning error on various excerpts from the charge, we have considered carefully and find no error in them, all being abstractly correct statements of the law governing the issues involved in this case, as ruled in the cases cited in division 1, above, and adjusted to the evidence. While the plaintiff did not allege in so many words that the sale through him was "prevented" by the defendant's selling through another broker, he did allege, and, his evidence authorized the jury to believe, that, as contended, his efforts were the proximate cause of the procuring of the customer, who actually bought, though through another broker.
3. It is never error to refuse to direct a verdict. See Roberts v. Groover, 161 Ga. 414 (131 S. E. 158).
4. Special grounds 1 through 6 assign error on the refusal to give requests to charge. We have examined these grounds carefully and find no, error in the judge's refusal. Where the charge given sufficiently covers the principles requested, it is not error to refuse the requests. Southern Ry. Co. v. Florence, 81 Ga. App. 1 (57 S. E. 2d, 856).
Nor is it error to refuse a request not entirely abstractly correct, or not adjusted to the evidence.
Alston, Foster, Sibley & Miller, McCurdy & Candler, contra.
John Wesley Weekes, Herbert J. & Joseph F. Haas, for plaintiff in error.
Saturday May 23 04:52 EDT

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