Chase & Taylor, Inc. v. Milam , 179 Ga. App. 844 ( 1986 )

Deen, Presiding Judge.

The issue is whether OCGA § 43-40-24 (b) (formerly Ga. Code § 84-1404) permits a Georgia-licensed real estate broker to sue for a sales commission arising solely out of the acts of a sales agent who was licensed in a foreign state. The trial court, having construed the law to require the agent to be Georgia-licensed also, directed a verdict for defendants upon the application of the statute to those undisputed facts.

The undisputed facts are these: “[T]he sole agent, servant and employee for Plaintiff performing any real estate acts in this transaction was Mr. Lowell Grattan. . . . Lowell Grattan is licensed in the State of California with the California Real Estate Commission, and is not, and never has been, licensed in the State of Georgia . . . Lowell Grattan actively participated in the acts of a real estate sales person within the State of Georgia.” It appears also to be without dispute that the commission in question related to a 1980 transaction negotiated by Grattan with Californian Lee Brandenburg involving the sale of property in north Fulton County.

Plaintiff contended that there was a commission division agreement between it and defendants which was breached by defendants’ refusal to share the commission earned. It further contended that the original agreement was modified after Grattan became employed by plaintiff as an associate broker, so as to substitute plaintiff for Grattan on transactions involving investors introduced to defendants through plaintiff or Grattan acting on behalf of plaintiff. Thereafter, it contended, the agreement was further modified to cover the Brandenburg transactions specifically; the sale ultimately took place, but defendants refused to honor the commission agreement. Consequently, plaintiff filed suit.

OCGA § 43-40-24 (b) or its predecessor controls in this case. Cases decided under this section, Berchenko v. Fulton Fed. Savings &c. Assn., 244 Ga. 733 (261 SE2d 643) (1979); Krizan v. Newman & Co., 246 Ga. 214 (271 SE2d 135) (1980); Wanamaker v. Esther Wynne Realty, 163 Ga. App. 338 (294 SE2d 581) (1982), bar from maintaining an action for real estate commissions only a broker who does not hold a Georgia real estate license. Where, as here, plaintiff broker does possess a proper license, there are no such limitations. This would obtain even though the commission arose solely out of the acts of a sales agent who was licensed only in a foreign state. The trial court erred in construing the law to require the agent to be Georgia-licensed.

Judgment reversed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., Carley, Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.