Williamson v. C & S Realty Co. , 130 Ga. App. 592 ( 1974 )

Hall, Presiding Judge.

This is the second appearance of the instant suit in this court, a previous appeal by Lucy Bryant Williamson and Billie Bryant Henry as executrices of the estate of Lucy D. Bryant being reported at 127 Ga. App. 435 (193 SE2d 863), wherein the transactions underlying this suit by a real estate broker for its commissions are set forth. Before us on this appeal is a default judgment taken by the broker, C & S Realty Company (hereinafter, "broker”) on its amended complaint against Mrs. Williamson and Mrs. Henry in their individual capacities as heirs of Mrs. Bryant, seeking damages for their allegedly having tortiously conspired with a lessee of the rental premises here in dispute to defeat broker’s right to continued commissions under a lease contract initially executed in 1964. Presently, the premises are leased by appellants to the lessee under a lease dated August 15, 1970.

No answer to the amended complaint having been filed, a hearing was duly held on April 10, 1973, at which time broker had the burden of establishing the amount of its damages, said damage being for tort and not for breach of contract. Code Ann. § 81A-155 (a). The trial court ruled that damages had been adequately established, and entered judgment for broker for $1,787.50 plus costs. We reverse.

In attempting to carry its burden of establishing damages claimed to have been incurred as a result of appellants’ having defrauded it of the benefits of its contract, broker urged that multiplication of 5% commission fee for each month of the entire term of the new lease actually executed by appellants and the lessee at the stated rental rate of $550 per month yielded a product of $1,722.50. Appellants stipulated that the multiplication was correct. However, broker failed to show its entitlement to this or any other amount.

Because broker chose to seek as its measure of damages the amount that it would have recovered under a lease to which it had been made a party, its right to recovery may rise no higher than it would have in that circumstance; had it been a party to a lease which continued the terms of the initial, 1964, lease, it would not have been able to seek recovery for its percentage of future rental instalments until those instalments became due. Code § 20-1401; Nicholes v. Swift, 118 Ga. 922, 926 (45 SE 708). In Stevenson v. Allen, 94 Ga. App. 123 (93 SE2d 794) it was recognized that monthly lease payments are not due until each due date arrives.¹ This follows also from the language of the 1964 lease itself (to the continued benefit of which broker contends it should have been entitled) which computed broker’s commissions at "five percent (5%) of all rentals thereafter paid by Lessee under this lease.” (Emphasis supplied.) Thus, broker must show the actual payment of rental before it may claim a percentage thereof as commission, even had it been a party to the lease. At the time of the hearing, broker was properly positioned to claim only its percentage of any rental instalments actually shown to have been paid to date.

Submitted September 14, 1973 Decided January 17, 1974.

We see no conflict between these principles and Kerr v. DuPree, 35 Ga. App. 122 (132 SE 393), urged here by broker for the proposition that the measure of damages for tortiously procuring one to breach a contract with another "is the amount which he would have earned under the terms of the contract.” Under the instant contract, broker would earn nothing until rental payments are actually made.

At the hearing broker introduced the lease actually executed by appellants with lessee, showing a term beginning September 1, 1970, and extending through August 31, 1975. However, appellants’ attorney declined broker’s request to stipulate that lessee had actually been a tenant from June 1, 1970 to the hearing date. There was no allegation of the lessee’s tenancy or payment of rent made in the amended complaint the assertions of which were admitted by appellants by their failure to file an answer. Therefore, the lessee’s tenancy and payment of rent remained to be proved at the hearing.

Though evidence was introduced at the hearing by broker tending to show that the lessee actually occupied the leased premises, this is inadequate as a matter of law to prove the payment of any rent in any amount under the lease, and broker cites no authority for the contrary view.

At the conclusion of broker’s evidence, appellants moved the court to dismiss broker’s claim on the ground that there had been an entire failure of proof of damages because there had been no proof of the making of any rental payment. The trial court should have granted the motion and entered judgment for appellants. The result would be different had broker used discovery procedures or subpoenaed appropriate witnesses to prove the actual payment of rental amounts under the lease, assuming without deciding that such amounts had been paid. Had such facts existed, proof of them was entirely possible, and this was simply not done.

The trial court erred in denying appellants’ motion to dismiss made at the conclusion of the hearing on damages.

Judgment reversed.

Bell, C. J., Eberhardt, P. J., Deen, Quillian, Clark and Stolz, JJ., concur. Pannell and Evans, JJ., dissent. Westmoreland, Hall, Bryan, McGee & Warner, J. M. Crawford, for appellants. Marvin P. Nodvin, Ira S. Zuckerman, for appellee.

1 An attachment for attempted removal from the county in anticipatory breach of a lease contract was allowed in Stevenson only because the statute allowed attachment even for debts not yet due. It is true that the court says at 94 Ga. App. p. 125 that upon anticipatory breach plaintiff could "sue for her entire damage,” but the opinion does not say that her damage would be the lease amount for the remainder of the lease term.